Kenya's Scorecard On Security and Justice: Broken Promises and Unfinished Business

Kenyas scorecard on
security and justice :

Broken promises and
unfinished business
Report
July 2017 / N696a
KENYA_REPORT_0717.indd 1 29/07/2017 11:19

Cover Picture: Kenyan riot police officers hold batons as they detain a suspected supporter of the Kenyas opposition
Coalition for Reforms and Democracy (CORD), during a protest on May 16, 2016 in Nairobi, outside the headquarters
of the Independent Electoral and Boundaries Commission (IEBC). Opposition protestors led by former Prime Minister
Raila Odinga gathered outside the Indepedent Electoral and Boundaries Comission building to demand the dismissal
of IEBC commissioners, after alleged bias towards the ruling Jubillee Alliance Party.

TABLE OF CONTENTS
LIST OF ABBREVATIONS AND ACRONYMS 4
EXECUTIVE SUMMARY 6
METHODOLOGY 8
INTRODUCTION 8
I. SECURITY SECTOR REFORM : INSTITUTIONAL PARALYSIS

AT THE EXPENSE OF HUMAN RIGHTS 9
A. Legal and institutional framework 9
A.1. Legal Framework 9
A.2. Key institutions in the security sector 11
A.3 Structure of the security agencies 13
B. Persisting deficiencies within the security sector 13
B.1. Security agencies remain one of the main perpetrators of human rights violations 13
B.1.1 Human rights violations arising from counter-terrorism measures 14
B.1.2 Normalization and Digitization of Extra-judicial killings and executions 17
B.1.3 Policing protests 22
B.1.4 Lack of Transparency, Coordination and Accountability in Joint Security Operations 24
B.1.5 Increase in illegal firearms 25
B.1.6 Surveillance and digital security 26
B.1.7 Security challenges in the context of the 2017 general elections 28
B.2. Persisting weaknesses in the accountability process for security agencies 30
B.2.1 General accountability for human rights violations by security agents 30
B.2.2 Accountability of the police 31
B.2.3 Accountability of the military 37
B.3. Abuse of legislative processes to address security concerns and fight dissent 38
C. Security management and capacity 39
C.1. Infrastructure and capacity of security agencies 39
C.2. Budget allocations for security 40
C.3. Community policing 41
II. PROGRESS AND CHALLENGES IN ADVANCING JUDICIAL REFORMS

AND ACCOUNTABILITY FOR HUMAN RIGHTS VIOLATIONS 43
A. Judicial reforms meant to strengthen the legal framework 43
A.1. Achieving judicial reforms in a hostile environment 44
A.2 Strained relationship 45
A.3 Underfunding the judiciary 46
A.4 Corruption and imprudent use of ressources by the Judiciary 48
B. Victims of the 2007/2008 Post-Election Violence (PEV) still await for justice and reparations 48
B.1 Seeking justice through domestic courts 49
B.2 Failures of the proceedings before the ICC 51
CONCLUSION 57
RECOMMENDATIONS 58
Recommendations on the Security Sector 58
Recommendations on the Justice Sector 60
General and Crosscutting Recommendations 61

LIST OF ABBREVATIONS
AND ACRONYMS
ACHPR African Charter on Human and Peoples Rights

AP Administration Police
APC Armoured Personnel Carrier
ARV Anti-Retroviral
ATPU Anti-Terrorism Police Unit
BPU Border Patrol Unit
CAJ Commission on Administrative Justice
CCTV Closed Circuit Television
COFEK Consumer Federation of Kenya
COK Constitution of Kenya
CORD Coalition for Reforms and Democracy
CSO Civil Society Organization
DCI Directorate of Criminal Investigations
DPP Director of Public Prosecutions
FIDH International Federation for Human Rights
GSU General Service Unit
HRDs Human Rights Defenders
IAU Internal Affairs Unit
ICC International Criminal Court
ICT Information Communication and Technology
IDPs Internally Displaced Persons
IEBC Independent Electoral and Boundaries Commission
IGP Inspector General of Police
IMLU Independent Medico-Legal Unit
IPOA Independent Policing Oversight Authority
JTF Judiciary Transformation Framework
KDF Kenya Defence Forces
KES Kenya Shillings
KHRC Kenya Human Rights Commission
KICA Kenya Information and Communication Act
KNCHR Kenya National Commission on Human Rights
KNP Kenya National Police
KPR Kenya Police Reservists
KWS Kenya Wildlife Service
4 FIDH / KHRC - Kenyas scorecard on security and justice : broken promises and unfinished business

MSJC Mathare Social Justice Center
NASA National Super Alliance
NCCC National Coordination Consultative Committee
NCHRD-K National Coalition of Human Rights Defenders
NGAO National Government Administration Officers
NGO Non-Governmental Organization
NIS National Intelligence Service
NPS National Police Service
NPSC National Police Service Commission
ODM Orange Democratic Movement
OHCHR Office of the High Commissioner for Human Rights
OPSA Outstanding Police Service Awards
PBO Public Benefits Organizations
PEV Post-Election Violence
PRWG Police Reforms Working Group
RDU Rapid Response Unit
SGBV Sexual Gender Based Violence
SLAA Security Laws (Amendment) Act
TFV Trust Fund for Victims
TJRC Truth Justice and Reconciliation Commission
UN United Nations
FIDH / KHRC - Kenyas scorecard on security and justice : broken promises and unfinished business 5

EXECUTIVE SUMMARY
10 years after the 2007/2008 post-election violence (PEV) in Kenya, which led to the death of more
than 1,000 people and to the forced displacement of over 600,000, the country is set to go into another
general election on 8 August 2017. With less than a month to the polls, the political environment remains
tense and there have been already worrying incidences of electoral related violence.
In the aftermath of the PEV, the deficiencies within the security and justice sectors were singled out
as being part of the root causes of the violence. This compelled Kenyan authorities to initiate legal
and institutional reforms within both sectors in order to prevent further violence. The new Constitution
adopted in 2010 underpins the basis upon which such reforms have been initiated.
This new FIDH and KHRC report aims to offer an assessment of the Jubilee Administrations term in
office in the past four years and five months and specifically its performance with regards to the human
rights agenda in the security and justice sectors. The Jubilee Administration came into office in March
2013, when the Constitution was barely three years old, making it the government that was entrusted
with the substantive realization and implementation of the expected reforms.
This report therefore assesses the extent to which these reforms have been actualized and implemented
and their effectiveness. It notes where progress has been made as well as where there have been multiple
attempts to weaken the institutions and mechanisms established under the Constitution.
While there have been some positive legislative developments by Parliament, the Executive arm of
government has both under-performed and in some instances deliberately undermined the advancement,
realization and enjoyment of human rights. Accountability and reparations for human rights violations
and abuses has also not been realised to a generalised climate of impunity.
With respect to the security sector, the report shows that although oversight for the police has grown
over the years since the 2007 elections, it is apparent that some within the current government are
attempting to undo these advances, which raises serious concerns in the perspective of the forthcoming
general elections.
A particular source of concern lies with the existence of rogue security enforcement officers in at least
26 counties out of the 47 counties in Kenya, who often work along with criminals, including in Nairobi,
Kirinyaga, Lamu, Mombasa, Kisii, Bungoma and others. These associations and operations no doubt
counter efforts aimed at ensuring the security of the population. Furthermore, the existence of militia
groups and gangs not only contributes to insecurity but inhibits security operations and undoubtedly
contributes to the violation of human rights and freedoms. These revelations make it all the more
necessary to tighten the accountability measures against police excesses and actions.
As the 2017 elections draw closer, some are also concerned that there is decreased military oversight
with a view to using the military during any political unrest the elections may cause. Police reforms have
seemingly stalled and President Kenyatta has turned to the military in the face of increasing domestic
threats within Kenya.

With respect to the justice sector, it is important to understand the strides the Judiciary has taken to
establish itself and specifically how it is better prepared to take on the elections as compared to 2007
and 2013. The evolving constitutional relationships between the Judiciary, the Executive and Parliament
are also examined with a close focus on the changes intended or unintended that have come about
in the recent years as a result of the various reforms.
In addition to this, the report shows how the Jubilee Administration has on several occasions fought
against accountability measures related to the PEV as well as those related to more recent grievous
violations by the security sector. It examines in particular the role of the Judiciary in attempts to bring
about justice and reparations to the victims who suffered from the 2007/2008 PEV. It shows how
organizations seen to be in support of the International Criminal Court (ICC) as well as accountability
and good governance broadly found themselves on the receiving end of the Jubilee Administration,
immediately upon its inauguration. The report also highlights how the Government engaged in political,
legal and social strategies to discredit, harass and intimidate human rights organizations. The most
notable of these efforts has been the failure to operationalize the Public Benefits Organizations (PBO)
Act despite a Court order instructing the same. Instead, the government has sought to introduce
retrogressive amendments to the law which such as the introduction of legal restrictions to the funding
and operations of civil society organizations.
During the forthcoming elections, President Uhuru Kenyatta and Deputy President William Ruto will
seek to renew their mandates under the banner of the Jubilee Coalition. The greatest competitor to the
Jubilee Administration is the National Super Alliance (NASA), a collation of five major political parties
that have come together to support the presidential bid of Raila Amolo Odinga and his running mate
Kalonzo Musyoka1.
The report makes recommendations targeted towards specific institutions and government
agencies and aims to set the reform agenda for the next administration. FIDH and KHRC hope that
these recommendations, if adopted and implemented will be instrumental towards actualizing and
implementing the pending reform that would move Kenya towards realizing its obligations to respect,
promote, protect and fulfill human rights and fundamental freedoms.
1. h
ttps://www.standardmedia.co.ke/article/2001237873/raila-odinga-it-is-nasa-unveils-flag-bearer accessed 3 July 2017

METHODOLOGY
The Report was developed by a team of researchers who relied on both primary and secondary sources
of information. The team reviewed and appreciated information that has been documented by other
organizations - both state and non-state. It further conducted a total of 17 interviews with individuals
and representatives of state and non-state organs. The report is enriched by the narrations of some of
the interviewees, most of whom requested not to be named in the Report.
INTRODUCTION
The Jubilee Coalition government of President Uhuru Muigai Kenyatta and his Deputy, William Samoei
Ruto got into power on 9 April 2013 following the March 2013 General Election. The election of Kenyatta
and Ruto as President and Deputy President was upheld by the Supreme Court of Kenya in its decision
delivered on 30 March 2013 regarding an election petition that had been filed by various parties including
Raila Amolo Odinga who came second in the Presidential election and two individuals, Zahid Rajan
and Gladwell Otieno. The election petitions challenged the integrity, transparency and credibility of the
electoral process as well as the results and outcome of the 2013 General Election.
The Jubilee Administration came into power with a myriad of promises that were contained in its manifesto
and other public messages. These promises were to be fulfilled within the 5-year term in office from
April 2013 to August 2017. The Jubilee Coalition had 7 key pledges which included: a transformational
leadership that would ensure the public service provides quality services and is accountable to people;
a safe Kenya with expanded, equipped and modernized security agencies to ensure every Kenyan is
guaranteed of their safety and that of their loved ones and their property; and social justice ensuring that
the rights of all Kenyans are preserved through good governance, democracy, and respect for the rule of
law and social protection and welfare for the disadvantaged.
Of particular note is that both President Kenyatta and his Deputy Ruto, came together on an anti-ICC
campaign agenda, at a time when they were both facing criminal prosecutions for crimes against
humanity before the International Criminal Court (ICC). It is therefore of importance to note that for
the better part of their initial term in office, the President and his Deputy engaged in a robust national,
regional and international agenda of discrediting the ICC and undermining not only the integrity of the
Court but interfering with and discrediting the proceedings against them. These efforts contributed
significantly to the collapse of the cases against them.
President Kenyatta and his Deputy Ruto came into office when charges for crimes against humanity
arising from the 2007/2008 Post-Election Violence (PEV) had been confirmed against them by the ICC.
The PEV resulted in more than 1100 deaths, 600,000 internally displaced persons, rape and other forms
of sexual violence and other serious crimes. The PEV is of significant historical importance for Kenya
and marks a turning point in the political, social and institutional history of the Country. The cause of the
violence was attributed to the deficiencies in the security and justice sectors. The aftermath of the PEV
and the recommendations of the Commission of Inquiry into the Post-Election Violence (CIPEV) were
instrumental in pushing for key institutional and legislative reforms in a number of sectors, including the
justice and security. The reforms were aimed at addressing the violations that had already occurred and
their root causes in order to prevent future violence and violations. The major hallmark of these reforms
remains the promulgation of a progressive Constitution on 27 August 2010.
8 FIDH / KHRC - Kenyas scoreboard on security and justice : broken promises and unfinished business

In the last five years, Kenya has adopted several pieces of legislation, either as new laws or as
amendments to existing laws. A number of the new laws have been on implementing the Constitution
of Kenya 2010. This achievement is laudable, particularly with respect to legislation that enhances the
protection and promotion of human rights such as the Access to Information Act, 2015, the Prevention
of Torture Act, the National Coroners Service Act, the Legal Aid Act, The Victims Protection Act and the
Protection Against Domestic Violence Act1. Unfortunately, other legislative developments have had far
reaching setbacks on the gains made on human rights and fundamental freedoms, such as the Security
Laws (Amendment) Act and the Kenya Information and Communication (Amendment) Act.
The report largely centers its analysis based on the aspirations of the 2010 Constitution and examines
the extent to which the Jubilee Administration has adhered to or veered off from them.
I. SECURITY SECTOR REFORM: INSTITUTIONAL PARALYSIS

AT THE EXPENSE OF HUMAN RIGHTS
This section of the Report analyses the challenges pertaining to the security sector under the Jubilee
Administration. It reflects on the legal structure that governs security and the actors within the security
sector. It also gives an analysis of the governments responses to some of the major security incidences
and challenges over the past five years and the effect that these responses have had on the enjoyment
and realization of human rights and fundamental freedoms.
A. Legal and Institutional Framework

A. 1. Legal Framework
Prior to the promulgation of the Constitution of Kenya 2010, there had been calls for holistic reforms within
Kenyas security sector. Notable reports had been published that characterized the clamor for reforms
both in terms of the laws, regulations and policies as well as the practice and operating procedures
within the security agencies. The most significant of these remains the Ransley report, which is largely
viewed as the police reforms blueprint2.
Chapter Fourteen of the Constitution of Kenya, 2010 (COK 2010) stipulates the principles of national
security, in particular, that national security shall be pursued in compliance with the law and with
the utmost respect for the rule of law, democracy, human rights and fundamental freedoms. These
principles, espoused under Article 238 of the Constitution, are paramount and form the basis for the
governments security operations, security law reform as well as the recruitment of security and law
enforcement officers.
The Constitution sets the national security organs as being the Kenya Defence Forces (KDF), the National
Intelligence Service (NIS) and the National Police Service (NPS). These organs are primarily charged with
the responsibility of promoting and guaranteeing national security in accordance with the Constitution.
1. A
vailable at www.kenyalaw.org accessed 24 May 2017
2. A
vailable at https://www.scribd.com/doc/245815329/Ransley-Report# accessed 24 May 2017
FIDH / KHRC - Kenyas scoreboard on security and justice : broken promises and unfinished business 9

The National Police Service (NPS) Act, 2011 regulates the recruitment, conduct and functions of the
police. The Act was amended in 2014 to give the president direct control in the appointment of the
Inspector General of Police, thereby eroding the independence of the Office of the Inspector General.
Further, the NPS Act was amended to expand the use of firearms to protect property as opposed to only
the protection of life. The National Police Service Commission (NPSC) Act, 2011 provides for the powers
and functions of the NPSC and the qualification and appointment of members.
The National Intelligence Service (NIS) is established under Article 239(6) of the Constitution and its
functions, organization and administration are governed by the National Intelligence Service Act, 2012.
The NIS Act requires the Service, in the discharge of its mandate, to observe and uphold the Bill of Rights
and the national values and principles of governance under Article 10(2) of the Constitution. The NIS is
required to comply with the constitutional standards of human rights and fundamental freedoms and to
train its staff to respect rights, fundamental freedoms and dignity1. The NIS is responsible for security
intelligence and counterintelligence necessary to enhance national security.
Certain laws have had the effect of clawing back on human rights protection and enjoyment. These
include the National Intelligence Service (NIS) Act 20122, the Prevention of Terrorism Act, 20123 and
the Security Laws (Amendment) Act, 2014 when viewed from the prisms of surveillance and counter-
terrorism measures which are discussed in further detail in subsequent sections of the report. The
NIS Act mandates the NIS to gather, collect, analyze and transmit security intelligence and counter
intelligence with the aim of detecting and identifying impending and actual threats to national security.
1. S
ection 3, National Intelligence Act, available at www.kenyalaw.org
2. S
ection 36 provides that the right to privacy under Article 31 may be limited where a person is suspected to have committed an
offence that would necessitate the investigation, monitoring or other interference with the persons communications. However,
this limitation requires that a warrant must be obtained prior to such interference, monitoring or investigation.
3. This Act gives security agents extensive powers to limit fundamental freedoms and the right to privacy through surveillance.

A. 2. Key Institutions in the Security Sector
National Security The Constitution establishes the National Security Council (NSC)
Council (NSC) which is the top security organ and exercises supervisory control
over national security organs. The Council makes annual reports to
Parliament on the state of Kenyas security. The National Security
Council is the apex security body in Kenya. It is chaired by President
Kenyatta and attended by the Deputy President, Interior Secretary,
Foreign Secretary, Defence Secretary, Chief of Kenya Defence Force,
Director General of NSIS, Inspector General of Police and the Attorney
General1.
National Police Article 243(3) of the Constitution stipulates that the National Police
Service (NPS) Service (NPS) is a national service and shall function throughout the
country. Parliament is further mandated to enact legislation to give full
effect to Article 243. The National Police Service consists of the Kenya
Police Service (KPS), the Administrative Police Service (AP) and the
Directorate of Criminal Investigations (DCI). The KPS is mandated
to among others, maintain law and order, prevent and detect crime,
apprehend offenders, enforcement of all laws and regulations2. The
functions of the AP Service include maintenance of law and order,
preservation of peace, protection of life and property, provision of
specialized stock theft prevention services among others3. The DCI is
charged with criminal investigations, collecting and providing criminal
intelligence, detecting and preventing crimes, maintaining criminal
records among others4. Under the National Police Service there are
special units or formations. These specialized units are the General
Service Unit, Anti-Stock Theft Unit, Anti-Motor Vehicle Theft Unit,
Tourism Police Unit, The Anti-Corruption Police Unit, Presidential
Escort Unit, and the Anti-Terrorism Police.
County Policing Section 44 of the National Police Service Act (NPS Act) establishes
Authority the County Policing Authority, chaired by the County Governor and
includes representatives of the National Intelligence Service, National
Police Service and the Directorate of Criminal Investigations,
County Assembly Members, the Chairperson of the County
Security Committees and other members appointed by the Governor
representing various interests.
1. Article 240(3) of the Constitution of Kenya, 2010

2. http://www.kenyapolice.go.ke/pages/links.html accessed 2 July 2017
3. http://www.administrationpolice.go.ke/2015-02-16-09-14-42/mandate.html accessed 2 July 2017
4. http://www.cid.go.ke/index.php/aboutus/our-functions.html accessed 2 July 2017

County Policing The functions of the County Policing Authority include the development
Authority
of proposals for police performance, monitoring crime trends and
patterns in the county; providing feedback on the performance of the
police service at the county level; ensuring policing accountability
to the public; and ensuring compliance with the national policing
standards. However, it is important to note that the Act does not confer
any policing mandate upon the County Policing Authority1.
National Article 246 of the Constitution establishes the National Police Service
Police Service
Commission (NPSC) whose mandate is to recruit, appoint and
Commission
determine transfers and promote service officers within the National
(NPSC)
Police Service. The NPSC also has the mandate of disciplining
and removing from office officers within the Service. Informally,
the NPSC performs the human resource management functions
for the National Police Service. The NPSCs Internal Affairs Unit
is charged with receiving, investigating and recording complaints
lodged against police officers and to promote uniform standards of
discipline and good order. In so doing the Unit take or recommend
such administrative disciplinary action or other legal measures to
hold the officers to account. The Inspector-General has the mandate
to establish and devolve the services of the Internal Affairs Units to
conduct investigations into police misconduct.
The Independent Policing Oversight Authority (IPOA) established

The Independent
under the Independent Policing Oversight Act, 2011 is mandated
Policing
to oversee the conduct and actions of the police, to monitor and
Oversight
Authority (IPOA) investigate policing operations and to review the internal disciplinary
processes.
Kenya Defence The Kenya Defence Forces (KDF) is governed by the Kenya Defence
Forces (KDF) Forces Act include the Kenya Navy, Kenya Air Force and Kenya Army.
As one of the three national security organs it is mandated with the
primary role of defending the country from external aggression and
threats to security of the country and its people. The KDF may be
deployed to deal with internal security threats upon approval by the
National Assembly2.
1. Section 41 (13) of the National Police Service Act

2. Kenya Defence Forces Act available at www.kenyalaw.org accessed 24 May 2017

A. 3. Structure of the Security Agencies
NATIONAL SECURITY CONCIL
NATIONAL POLICE NATIONAL INTELLIGENCE KENYA DEFENCE

SERVICE (NPS) SERVICE (NIS) FORCES (KDF)
KENYA
AP SERVICE ARMY
KENYA
DCI AIRFORCE
KENYA
KNP NAVY
SPECIALIZED UNITS
ATPU, GSU, ATSU, etc..
B. Persisting Deficiencies within the Security Sector

B. 1. Security agencies remain one of the main perpetrator of human rights violations
Kenyan authorities have often sacrificed the rule of law and respect for human rights and fundamental
freedoms within the context of addressing threats to national security. This has happened in selected
cases of dealing with security threats on the ground or through legislative and policy directives. Over
the years, security agents in Kenya have reportedly been the principal violators of human rights and
oppression arising from their operations and generally low levels of accountability.
Since the promulgation of the COK 2010, there has been little progress to suggest that violations
perpetuated by security agencies have reduced. An audit carried out by the Kenya National Commission
on Human Rights (KNCHR1) decried the documented allegations of human rights violations perpetrated
by security forces ranging from acts of torture, arbitrary arrests and detentions, and extrajudicial killings.
Oftentimes the security officers responsible are seldom held to account and the government is largely
seen as being slow in investigating and punishing the suspected perpetrators.
This section of the Report analyses specific human rights violations committed by the security agencies
over the past five years.
1. K
NCHR (2015) Audit of the Status of Police Reforms in Kenya. Report available at
http://www.knchr.org/Portals/0/AllOtherReports/FINAL%20EDITED%20POLICE%20REFORMS%20REPORT.pdf
accessed 19 May 2017

B.1.1. Human Rights Violations Arising from Counter-Terrorism Measures
Kenya has experienced a number of terrorist threats and attacks, like most other countries in the world.
The period that the Jubilee Coalition government has been in power has not been different. These attacks
have been carried out by Al Qaeda, Al Shabaab, Boko Haram and ISIL1. The Kenyatta government came
into power when Kenya had already deployed its defence forces to Somalia in October 2011 with the aim
of diminishing the capacity of Al Shabaab attacks on Kenya.
Since 2013, there have been at least two terrorist attacks per year in Kenya, mainly in the Coast, Northern
Kenya and Nairobi, causing the death of at least 365 people. On 21 September 2013, 67 people lost their
lives in an attack on Nairobis Westgate Mall. In June 2014, Al Shabaab killed 14 people in Mandera; this
followed another attack that the terrorist group had launched in December 2013 in which 36 quarry
workers lost their lives2.
Over 60 lives were lost in the Mpeketoni attacks in Lamu county, in November 2014, 28 people were killed
in Mandera when a bus they were travelling in was attacked3. In April 2015, 148 students were killed in a
terror attack at the Garissa University College. In November 2015, at least two people were killed in El Wak
on the Kenya-Somalia border in Mandera by suspected Al-Shabaab militants4. In June 2016, Al Shabaab
militants killed six people who included five police officers and injured four other people in another bus
attack in Mandera5. In January 2017, suspected Al Shabaab terrorists killed a police reservist in Mandera
town6. More recently, in May 2017 at least 3 police officers were killed by Al Shabaab in Liboi area in
North Eastern border between Kenya and Somalia7. This list is in no way conclusive but is illustrative of
the spate of terror attacks that the country has faced in the last 4 years.
Various state and non-state agencies have documented the governments response to these attacks
and their human rights impact. For instance, KNCHR established a pattern of conduct by Kenyan
security agencies amounting to grave violations of the law and human rights against individuals and
groups suspected to be associated with terror attacks in various parts of the country mainly in Nairobi,
Wajir, Mandera, Garissa, Lamu, Tana-River, Kwale, Kilifi and Mombasa counties. The counter-terrorism
operations were being conducted by a combined contingent of Kenya Defense Forces (KDF), National
Intelligence Service (NIS), Kenya Wildlife Services (KWS), County Commissioners, Deputy/Assistant
County Commissioners, Chiefs and various units of the National Police Service including the Anti-
Terrorism Police Unit (ATPU), Kenya Police Reservists (KPRs), Rapid Deployment Unit (RDU) of the
Administration Police, Border Patrol Unit (BPU) and the General Service Unit (GSU)8.
1. K
NCHR (2015) The Error of Fighting Terror with Terror
2. h
ttp://www.theeastafrican.co.ke/news/36-people-killed-in-fresh-Mandera-massacre-Kenya/2558-2542106-4sgg8xz/index.html
3. h
ttp://www.nation.co.ke/photo/1951220-2532988-18noie/index.html accessed 25 May 2017
4. http://www.theeastafrican.co.ke/news/Kenyan-Muslims-shield-Christians-in-Mandera-bus-attack/2558-3005128-ywab8u/
index.html accessed 25 May 2017
5. h
ttp://www.the-star.co.ke/news/2016/07/01/al-shabaab-kills-six-in-attacks-on-mandera-buses_c1378963 accessed 25 May
2017
6. h
ttp://www.nation.co.ke/counties/mandera/Boinnet-visits-Mandera/1183298-3785104-fx6gvnz/index.html accessed 25 May
2017
7. h ttp://www.aljazeera.com/news/2017/05/kenya-police-officers-killed-al-shabab-bomb-attack-170524085550863.html
8. K
NCHR, The Error of Fighting Terror with Terror, 2015 available at http://www.knchr.org/Portals/0/CivilAndPoliticalReports/
Final%20Disappearances%20report%20pdf.pdf accessed 28 May 2017

With specific regards to the involvement of the KDF in counter-terror measures, the KNCHR
noted:
The Commission has recorded two hundred (200) cases of egregious human rights violations
that include twenty-five (25) extrajudicial killings and eighty-one (81) enforced disappearances
since 2014. These violations were widespread, systematic and well-coordinated and included
but are not limited to arbitrary arrests, extortion, illegal detention, torture, killings and
disappearances. KNCHR further heard multiple narratives of suspects being rounded up and
detained for periods ranging from a few hours to many days in extremely overcrowded and
inhumane and degrading conditions. Many were tortured while in detention sustaining serious
physical injuries and psychological harm as a result1.
Operation Usalama Watch
Operation Usalama Watch2 was initiated by the government as a security operation to address terrorism.
The operation was launched after two major terrorist attacks in March 2014 in Nairobi and Mombasa.
Its aim was to identify and flush out foreigners linked to terrorism3.
On 5 April 2014, the Cabinet Secretary for the Ministry of Interior and Coordination of National Government,
Mr. Joseph Ole Lenku, announced the deployment of 6,000 police officers to Eastleigh, thus rolling out
the governments Usalama Watch security operation, a massive crackdown on illegal immigrants4. The
aim of the operation was to identify, arrest, and prosecute people suspected of engaging in terrorist
activities in Kenya. The operation mainly focused on Mombasa and Eastleigh, Nairobi. The end result
was a total of more than 4,000 people. They were unlawfully datained at various location including the
Kasarani Sports Stadium in degrading conditions in blatant violation of the rights and fundamental
freedoms of those detained5.
The detainees were held for days on end without access to family members or lawyers and in some cases
without food or water. The operation was characterized by numerous reports of extortion, intimidation,
physical and sexual assault and harassment from the security officers during the searches. About 307
individuals were deported to Somalia in clear violation of the UN principle of non-refoulement. Over 1,000
Somalis were relocated to refugee camps in the country6. Human rights organizations including the
UNHCR were given very limited access to the screening and detention centers.
Operation Usalama Watch was characterized by security officers commission of numerous breaches
of human rights and the law such as extortion, theft, looting and destruction of property, businesses
and homesteads, arbitrary arrests and detentions, illegal deportations, torture, inhuman and degrading
treatment and sexual harassment7.
1. K
ey Informant Interview with KNCHR, Nairobi, June 2017
2. U
salama is a Swahili word meaning Security
3. S
upra, KNCHR report
4. S
ee https://www.standardmedia.co.ke/article/2000109301/60-detained-at-jkia-as-operation-operation-usalama-watch-hots-up
accessed 29 June 2017
5. S
ee https://www.hrw.org/news/2014/04/11/kenya-halt-crackdown-somalis accessed 28 June 2017
6. h
ttps://www.amnesty.org/en/latest/news/2014/05/kenya-somalis-scapegoated-counter-terror-crackdown/ accessed 28 May
2017
7. K
NCHR (2014) A Country Under Siege: The State of Security in Kenya an Occasional Report (2010-2014)

Prior to the launch of Operation Usalama Watch, the Cabinet Secretary for the Ministry of Interior and
Coordination of National Government, Mr. Joseph Ole Lenku, issued a directive in March 2014 ordering
the immediate return of all refugees outside the designated refugee camps to their respective camps1.
It would then appear that the operations under the Usalama Watch were also intently geared towards
ensuring that this directive was effected.
The KNCHR audit of Police Reforms notes that counter-terrorism operations in Nairobi, at
the Coast and in North Eastern have been abusive and unfairly targeted ethnic Somali and
Muslim communities. Most notable was the Usalama Watch in Nairobi and Mombasa that
were characterized by harassment and detention of residents without charge and beyond
the legal detention period. While these allegations have been levelled against the various
units of the security forces, such as the National Intelligence Service (NIS), and the General
Service Unit (GSU) the Anti-Terrorism Police Unit (ATPU) has been implicated as being the
most notorious2.
Inadequate Preparedness and Coordination to Respond to the Terrorist Threats,

leading to Human Rights Violations.
Kenya Human Rights Commission and Human Rights Watch3 reported the slow response by security
forces during the Lamu and Tana alleged Al Shabaab attacks in 2014 in which over 80 people died,
including four security officers. Even when the security agencies responded to the attacks, their response
often led to human rights abuses with villagers subjected to arbitrary arrests and detentions, killings,
beatings, and loss of property. The organizations report the lack of preparedness by the security forces
to respond to the attacks.
In 2014, the Independent Policing Oversight Authority (IPOA) reported that the NPS response to the
Mpeketoni attacks was too slow and disjointed. The nature of this response and that of follow up
operations was as a result of various factors, such as the presence of high level senior commanders from
the headquarters and the Executive, lack of a centralized command structure that affected coordination
between the Kenya Police Service, the General Service Unit (GSU) and the Administration Police (AP), lack
of harmony between the county government and county security apparatus, failure to act on intelligence
and lack of specific intelligence, lack of adequate personnel and infrastructural capacity among others4.
The governments response, reaction and preparedness in these instances has been as diverse as the
incidences themselves, raising questions as to the existence of an effective national counter-terrorism
strategy and policy. Some of these strategies have been replicated with every terror incident while others
have been case specific. In most instances, these responses have depicted a discriminatory approach
that is largely laced with ethnic and religious profiling that disproportionally targeted certain individuals
particularly those of Somali descent5.
Furthermore, the responses have often been mainly reactive and hinged on a clear absence of security
intelligence to inform the strategies. This was particularly evident in the Westgate Attack. The preventative
aspect of counter terrorism has been the weakest in Kenyas counter terror strategies. There have been
instances where it was reported that there was sufficient intelligence that would have required the
1. S
ome refugees had left the designated refugee camps in Kakuma and Dadaab and were living outside the camps. the directive
was to ensure that all refugees returned to their respective camps
2. S
upra KNCHR Audit at page 38
3. K
HRC and HRW, 2015, Salt to Injury, available at https://www.hrw.org/sites/default/files/report_pdf/insult_to_injury.pdf
4. IPOA Report Following the Mpeketoni Attacks available at www.ipoa.go.ke/other-documents accessed 23 May 2017
5. K
NCHR Key Informant Interview, Nairobi, May 2017

My analysis of security in Kenya is that it is flawed and with different narratives to it. We
have a very secretive security system but the secrecy is more to cover up the incompetence,
wrong doing and errors and less to do with securing Kenyans. There is a general culture where
security agencies feel irritated when called to account1.
Corruption is one of the factors that inhibit effective counter-terrorism operations in Kenya.
For instance, during Operation Usalama Watch, some criminals who had allegedly been
deported to Somalia got back into the country after paying a fee to security agents2.
B.1.2. Normalization and Digitization of Extrajudicial Killings and Executions
Extra-Judicial Killings and Executions have bedeviled security forces and the legacy of the Kenyatta and
his predecessors regimes. Even more worrying is the fact that killings by the police without justification
seem to have been normalized and generally accepted as a normal state of affairs in dealing with
insecurity or to curb crime. Under the Jubilee administration, 141 persons were killed by the police in
2015 while 204 were killed in 2016 and a further 80 persons as at 28 June 20173. There has also been
a pattern that suggests that these killings almost often target youthful persons from low income areas.
The rising cases of extrajudicial killings and summary executions have been the subject of concern
with the African Commission on Human and Peoples Rights (ACHPR) which recently issued a Letter
of Appeal on 26 May 2017. The Letter expressed concern over the widespread patterns of extrajudicial
killings implicating the police in Kenya and the equally unsettling lack of investigation and prosecution of
such cases of extra-judicial killings4.
In the last couple of months, extrajudicial executions have taken a new angle and moved to an all new
level. In April 2017, there emerged the existence of a number of Facebook accounts and pages that are
believed to be run by police officers. Most of these Facebook pages concern low-income areas in Nairobi
like Dandora, Kayole, Huruma and Mathare and are aptly named in Kiswahili as Hessy wa Dandora, Hessy
wa Kayole, Hessy wa Huruma and Hessy wa Mathare. The Pages are characterized by posts warning
specific suspected criminal gang members in the areas, complete with their photos, names and areas
of operation to change their ways and surrender to the police, failure to which they will be killed. Hours
or days later, the killer police post bloody pictures of the suspects gunned to death, sometimes with
another eerie warning to fellow suspected gang members. Most of these pages are operated under the
Hessy names or under different crime watch pages such as Kayole Crime Free5, Kayole My Kingdom:
together we can make it a safe place, or Crime Free Dandora6.
It is alleged that the Facebook pages and accounts were started in an attempt by the police to engage the
members of the public on policing and addressing crime in the informal settlement areas. It is believed
that an Administration Police (AP) officer based at the Soweto AP camp7 working with a Nairobi blogger,
is behind the Hessy wa Kayole and Hessy wa Huruma Facebook accounts.
1. Interview with KM, a Journalist who writes on topical issues in Kenya, Nairobi, June 2017
2. K
ey Informant Interview, GM, Nairobi, June 2017
3. h
ttp://www.nation.co.ke/newsplex/deadly-force-database/2718262-3402136-ms1o0nz/index.html accessed 25 May 2017
4. h
ttp://www.achpr.org/news/2017/06/d290 accessed 30 June 2017
5. h
ttps://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=5&cad=rja&uact=8&ved=0
hUKEwiRxbDgjaTUAhXLJMAKHXaODpoQFghAMAQ&url=https%3A%2F%2Fwww.facebook.com%2FKayole-crime-free-
423372491364227%2F&usg=AFQjCNHUnR58a1mWm7nri__6tDg8usebiQ&sig2=qGn8HOOHhov2cV9uTe6x-g accessed 4
June 2017
6. h
ttps://www.facebook.com/CRIME-Free-Dandora-na-HESSY-1884782698463484/ accesed 4 June 2017
7. A
n Administration Police Camp (post) in Soweto Slum in Kayole, Nairobi

In an interview with The Star Newspaper1, the AP Officer revealed that he had been shot in the leg in April
2017 and while away from duty due to the injury, he decided to create the accounts, to brief his colleagues
and share intelligence with them, at a time when there was a lot of pressure from top cops in Nairobi over
rising crimes in Kayole. He disclosed that his unconventional method received initial resistance from
the Directorate of Criminal Investigation and the Regular Police officer since it contravened the police
service regulations but with time, they slowly came to terms with it2. Reading through the comments on
the postings of the execution of the suspected criminal gang members reveals a society that is generally
accepting of the mode of execution as being normal and necessary in order to end crime in these areas.
Morning, I remember warning this guy

by the name JOSEPH MUREGE after he
disappeared with passengers money in
one of the Dandora matatus (a public
transport minibus). This young man has
totally refused to reform. (addressing
the suspect) I said you have a gun but
your friends defended you. Last week
you stole a ladys phone at gun point in
CBD (Central Business District). Just
the other day, on Sunday you stole a
phone from another lady. What do you
want now? You come from a very well
off family, you lack nothing but you cant
stop your evil actions. You want us to
plead with you, right? Its ok.
1. h
ttp://www.the-star.co.ke/news/2017/06/02/i-created-hessy-wa-dandora-to-engage-public-on-crime-cop_c1572167 accessed
4 June 2017
2. S
upra

Now this is the one we want. My
sister we will look for you until we find
you Your best chance at survival is
surrender. We are waiting for you here
at Kinyago Police Post, surrender your
firearm within 48 hours or you will emit
smoke where police find you.
Musa is now past tense, please when

you are sent to prison, reform when you
come out (of prison) or else you will bite
a bullet for supper.

Morning members!! I would wish to
inform you something about this guy by
the name SKILE, he was ambushed in
his house last week around Saika area
and a loaded gun was recovered in his
house: this is the same guy that was
arrested last year with a fake gun, taken
to court and after a short while, he was
bonded by December last year, alter on
he refused to attend court proceedings:
he kept himself busy by terrorizing
innocent Kenyans after purchasing a
real gun in late December last year,
since that time, he has managed to kill
more than five (5) people including a
man that was shot dead at Civo area
a few months ago: all the robbery
incidents that have been taking place
within Kariobangi South Kariobangi
North, Dandora, Kayole and many more
places were being conducted by him and
another guy by the name SHERIFF from
Kayole- KIrima area. I tell you this is one
of the reasons this guys are shot dead
by the police officers because theres no
way someone will be arrested then his/
her family members or sympathizers
bail him/her out. And yet when the get
out (of prison on bail) they continue with
their business as usual. Am telling you
this for free, those who know him should
tell his family members or his friends
that WE ARE WAITING FOR HIM TO GET
OUT (of prison) AGAIN!!!!!!
Security officers seem to have become more emboldened and public with their extrajudicial, blatant
and brutal killing of suspects. The police is alleged to publicly announce the list of people that they
intend to kill, indicating that some of the executions are planned and premeditated. Upon carrying out
the execution, the pictures of the dead persons are shared on social media platforms to warn others1.
There appears to be a practice that is either commanded and/or condoned by senior security officers.
On 31 March and 1 April 2017, a video footage of an alleged plain clothes police officer showed how
he openly killed two suspected criminals in Eastleigh, Nairobi on suspicion of being members of the
Super Power Gang, an outlawed criminal gang. The video, which went viral on social media platforms,
showed the police officer shoot the suspects at close range more than once each, even where it was
clear that the two were unarmed and had surrendered. The Nairobi Police Commander, Japheth Koome
downplayed the video and dismissed it as having been acted out and stated that he was even more
motivated and had no regrets and would be ruthless with criminals. The Inspector General of Police,
Joseph Boinett ordered investigations into the incident2.
1. M
athare Social Justice Center, Who Is Next? A Participatory Action Research Report Against the Normalization of Extrajudicial
Executions in Mathare, 2017 available at http://www.matharesocialjustice.org/who-is-next/ accessed 6 June 2017
2. http://www.the-star.co.ke/news/2017/04/01/video-cops-caught-on-camera-killing-suspected-eastleigh-gang-members_
c1536104 accessed 4 June 2017

The research team did not establish whether the investigations were concluded and what the outcome
was.
The executions and the subsequent postings reveal some common features. The persons killed are
usually shot severally at close range with a clear intention to kill as opposed to subduing them for
purposes of arrest, interrogation and possible prosecution; majority of those killed are young people
usually between the age of 17 and 23, with most of them being male; all the executions take place in the
low-income areas where most of these young suspected criminals live; a fake or real gun and or bullets
are allegedly always planted on the victim after the shooting and a photo of the same taken and posted
online.
The police unfairly target the young people. This is a war on young people. The venue [of the
killings] changes but the mode of execution is the same. The government is afraid of young
people and is out to kill the youth. The government says they have 50% of the jobs reserved
for the youth but they actually mean they have 50 bullets for the youth1.
The Mathare Social Justice Center (MSJC2) estimates that at least one poor, young male is executed
every week in Mathare. Based on press reports, MSJC puts the numbers of those executed over a period
of three years between 2013 and 2015, at 803. Further, MSJC has independently documented over
49 cases of extrajudicial executions in Mathare since 20153. Following the launch of the MSJC report
documenting these executions, the administrative coordinator, Stephen Kinuthia reported being targeted
and harassed by police officers.4
One respondent observed that the informal settlement residents argue that the police are protecting the
residents and therefore most of them laud the police for dealing with the criminal gangs that terrorize
and harass the residents5. Another respondent informed the research team that the criminal gangs often
work together and are financed by some politicians mostly because of their poor economic backgrounds.
He noted that extra-judicial execution should be addressed from different angles by interrogating certain
factors such as family backgrounds and economic status of the victims while also focusing on the
preventative angle6. It is evident that the community and family members may know of the criminal
activities of certain persons but are hesitant to turn them in because they know that the police will kill
them without due process. Some of the police executioners are known to the residents such as Rashid,
Benteke and Oti among others, yet no action is taken against them7.
According to a key informant, the police often argue that they kill the suspects because if they take them
to court they will be released on bail or even acquitted and go back to their communities to continue
with their criminal activities8. One respondent faulted this argument on the basis that the police are poor
in evidence gathering and lackluster when they do it and thus present cases whose evidence does not
meet the prosecutorial threshold to sustain a conviction. IPOA reported in 2013 that over 60% of the
cases brought to court do not meet the evidentiary threshold9.
1. Interview with Mungai, a youth from Mathare, 30 May 2017

2. M
SJC is an initiative by young members of the community to promote social justice in Mathare. More information available at
http://www.matharesocialjustice.org/about-msjc/ accessed 26 May 2017
3. M
athare Social Justice Center, Who Is Next? A Participatory Action Research Report Against the Normalization of Extrajudicial
Executions in Mathare, 2017 available at http://www.matharesocialjustice.org/who-is-next/ accessed 6 June 2017
4. S ee http://www.matharesocialjustice.org/eje-campaign/the-second-arrest-and-harassment-of-msjc-administrative-
coordinator-kinuthia-mwangi/&sa=D&ust=1498727621651000&usg=AFQjCNGQPRnJkS54945WUYv2-CDYPKsEQg accessed
30 June 2017
5. Interview with a member of the PRWG, Nairobi, 30 May 2017
6. Interview with a Mathare resident, Nairobi 30 May 2017
7. K
ey Informant Interview, Nairobi, 30 May 2017
8. K
ey Informant Interview, PRWG, Nairobi, 28 May 2017
9. K

The respondent noted that the police have formed the habit of blaming the judiciary for their failures and
inability to investigate, prosecute and prevent crime.
B.1.3. Policing Public Protests

The last five years have seen several human rights and fundamental freedoms trampled upon. One of
the most notable has been the freedom of assembly, demonstration, picketing and petition under Article
37 of the Constitution. Security agencies have on several occasions used excessive force to disperse
peaceful protesters. The intervention by security agencies in public protests have been characterized
by death, serious injuries, abuse of firearms, a predisposition that the protestors are violent, poor
communication, coordination, control and command, abuse of the rights of arrested persons, displays
of partisanship in policing decisions such as whether or not ban political demonstrations or rallies, the
absence of medical aid as part of public order management and the failure to interdict officers deemed
culpable of rights violation or improper conduct. These have been the findings of state agencies such as
IPOA1 and the Commission on Administrative Justice2 and the KNCHR3.
In January 2015, police violently dispersed a group of protesters which included primary school children,
parents and teachers of Langata Road Primary School and civil society members.The group was
peacefully protesting against the grabbing of the schools play field. More than 100 police officers, armed
with guns and teargas canisters, were deployed to the school before the protest began to safeguard the
life and property while ensuring the safety of the schoolchildren. Police fired tear gas at the protesters
resulting in a stampede in which five children and one police officer were injured4.
In mid-2016, the Coalition for Reforms and Democracy (CORD5) organized a series of public protests
and demonstrations- the anti-IEBC demonstrations- calling for the disbandment of the Independent
Electoral and Boundaries Commission (IEBC). IPOA monitored and investigated the operations of the
police during these demonstrations and the extent of compliance with national, regional and international
norms. IPOA established that the police used excessive force on vulnerable persons including women,
children, persons with disabilities and subjected the protesters to police brutality and harassment,
arbitrary arrests and unlawful detentions6. During the protests, the police used water cannons, lodged
tear gas canisters and physically beat protesters with batons7.
In November 2016, the police used live bullets, water cannons and tear gas at a group of civil society
members and human rights activists who were demonstrating against the reports of massive corruption
within the government8.
1. S
ee http://www.ipoa.go.ke/wp-content/uploads/2017/03/IPOA-Anti-IEBC-Report-January-2017.pdf accessed 28 May 2017
2. http://www.ombudsman.go.ke/wp-content/uploads/2016/04/Investigation-Report-on-use-of-excessive-force-by-police-
officers-and-improper-conduct-by-other-public-officers-during-the-Langata-Road-Primary-School-Demonstration.pdf accessed
30 June 2017
3. S
ee http://knchr.org/KNCHRcallsforrespectoftheBillofRights.aspx accessed 30 June 2017
4. INCLO, Lethal in Disguise: The Health Consequences of Crowd-Control Weapons, p 46 available at http://www.khrc.or.ke/
publications/113-lethal-in-disguise-health-consequences-of-crowd-control-weapons/file.html accessed 28 May 2017
5. C
ORD is a coalition of political parties that unsuccessfully contested the General Election in 2013
6. IPOA, Monitoring Report on Police Conduct During Public Protests and Gatherings: A Focus on the Anti-IEBC Demonstrations,
February 2017 available at http://www.ipoa.go.ke/wp-content/uploads/2017/03/IPOA-Anti-IEBC-Report-January-2017.pdf
7. h
ttp://www.aljazeera.com/indepth/inpictures/2016/05/kenya-police-crack-protesters-160517081225671.html
8. S
ee https://www.youtube.com/watch?v=pSkmEb30lOc and https://www.standardmedia.co.ke/article/2000222121/police-
disperse-anti-corruption-protesters-using-live-bullets accessed 24 May 2017

A member of the civil society working with a leading national human rights organization who was part of
the organizers and also took part in the protest narrated her experience to the research team:
There was heavy infiltration of the protest by armed police officers who wore the branded
T-Shirts right from the beginning1. When the police started firing, people fled in different
directions. Several people were stuck in the tunnels and toilets at the Park since the police
had blocked every exit. I witnessed the police hit people with their batons and even kick
some with their heavy boots. A number of people sustained injuries. A female human rights
defender was hospitalized after sustaining injuries from a tear gas canister that exploded in
her face. A few people were arrested and taken to different police stations and later released.
The interviewee went on to say that police targeted individuals who were wearing the red branded anti-
corruption t-shirts. Police detained the witness based on the shirt, as well as those near the witness. The
witness continued narrating her experience to the research team:
It was clear to me that the police were under strict instructions to prevent the protest from
taking place. One of the police officers told us that the protest was meant to be violent from
the onset and that the police had decided it was never going to take off. Prior to this there
were apprehensions that my organization was under digital surveillance and that the police
were monitoring the planning and communication on the protest. The police had too much
information on the protest.
I have taken part in other protest such as the one against extra-judicial executions. I think
that the anti-corruption protest had the interest of the state because we were calling for the
resignation of the President for failure to deal with massive corruption and theft of public
resources2.
The Observatory for Human Rights Defenders noted in its 2017 report that the police often use excessive
and disproportionate force against peaceful protesters which results in human rights violations and
harm owing to the irresponsible and reckless crowd control approaches by the police3.
1. S
ee https://www.google.com/url?q=https://youtu.be/WibLmPaD4qc&sa=D&ust=1498727621656000&usg=AFQjCNH3Y3uq3E
HL8q-l-MM2IhZ4NLUSEQ accessed 30 June 2017
2. K
3. The Observatory KENYA 2017 elections: broken promises put human rights defenders at risk availabe at https://www.fidh.org/
en/issues/human-rights-defenders/kenya-2017-elections-broken-promises-put-human-rights-defenders-at accessed 30 June
2017

B.1.4. Lack of Transparency, Coordination and Accountability in Joint Security Operations
The Jubilee administrations responses to insecurity incidences over the past five years have been largely
characterized by a trend in which human rights and fundamental freedoms appear to be suspended and
thus paving the way to significant instances of human rights violations. In addition to this, the government
has also adopted a trend of invoking military interventions to quell the insecurity by deploying the Kenya
Defence Forces to compliment the local police officers, without paying due regard.
An operational disjuncture existed within the security agencies characterized by the poor sharing of
information and lack of action on security intelligence. In addition, during the period under review, there
were instances where security was compromised by the confusion in the command structure between
the Kenya Defence Forces and the National Police Service1.
In February 2017, while attending a peace rally in Sibilo in Baringo County in the midst of the insecurity
incidences, the Deputy President William Ruto allegedly issued shoot-to-kill orders to police officers
and police reservists in the area to shoot indiscriminately at anyone who was found stealing livestock,
regardless of whether they were armed or not2 3. This was a clear violation of the Constitution as regards
the use of official power and the respect and protection of human rights.
As at December 2016, bandit attacks in the North Rift- Samburu, Baringo, West Pokot and Elgeyo
Marakwet counties, had caused the death of at least 962 people and hundreds more maimed and
displaced4. The attacks are not only targeted at the communities that have livestock but to the security
personnel in the area as well. In October 2014, 24 Administration Police Officers and three General
Service Unit officers were killed in Kapedo, Baringo County by suspected bandits and two months later a
retired senior sergeant was shot dead by bandits who also set ablaze his vehicle5.
Despite the increase in the number of police, the security operations have sometimes been devoid of
clear strategy and proper planning, often being reactive as opposed to being proactive in preventing
imminent insecurity. In October 2014, it emerged that the government had deployed a significantly large
number of new police recruits to Kapedo, Baringo County to recover stolen livestock. Most of the officers
had never been involved in a security operation and were thus ill-prepared and ill-equipped to deal with
the attack. In an attempt to deal with the situation, the government quickly deployed the Kenya Defence
Forces (KDF) to complement the police6.
This move was unconstitutional and in violation of Article 241(3)(c) of the Constitution that provides that
the KDF may only be deployed to any part of the Country with the approval of the National Assembly. In
this particular instance, the National Assembly7 had not authorized the deployment. This was followed
by calls for the withdrawal of the KDF from local area leaders8.
1. K
ey Informant Interview, KNCHR, Nairobi, May 2017
2. h
ttp://www.the-star.co.ke/news/2017/02/24/ruto-issues-shoot-to-kill-order-after-daring-bandits-disrupt-his_c1513643 and
3. h
ttp://www.nation.co.ke/news/Ruto-orders-police-to-shoot--kill-bandits/1056-3826656-1518ri6z/ accessed 21 May 2017
4. S
ee https://www.standardmedia.co.ke/article/2000225690/bandits-deadly-raids-leave-trail-of-death-destruction accessed 30
June 2017
5https://www.youtube.com/watch?v=_3x95pjW30k accessed 30 June 2017
6. h
ttps://www.standardmedia.co.ke/article/2000225690/bandits-deadly-raids-leave-trail-of-death-destruction accessed 23 May
2017
7. A
rticle 241 (3) (c ) provides that the Kenya Defence Forces may be deployed to restore peace in any part of Kenya affected by
unrest or instability only with the approval of the National Assembly
8. h
ttp://www.nation.co.ke/counties/Kapedo-Baringo-KDF-Troops-Conflict/1107872-2516526-118h8a8/index.html and http://
www.the-star.co.ke/news/2017/03/23/sh100-million-payout-for-baringo-kerio-valley-banditry-victims_c1530889 accessed 23
May 2017

This particular reactionary measure was adopted more than once1 by the government where the military
has been deployed to deal with internal security incidences as opposed to addressing the root causes
and ensuring that the police officers are adequately equipped and prepared to avert and respond to
insecurity incidences.
In most instances, the national government has often deployed other security forces to different areas
to supplement the police. For instance, in March 2017, President Uhuru Kenyatta, deployed the military
to work with the police in disarming and recovering illegal arms and restoring law and order in the North
Rift- Baringo, Elgeyo Marakwet, Pokot and Laikipia Counties2. This followed a spate of violence, largely
characterized as banditry among the communities in the North Rift region. The insecurity incidences
resulted in several injuries, multiple deaths and displacement of thousands from their homes3.
Correspondingly, security operations mounted in response to this state of insecurity have also been
characterized by human rights violations that re-victimize already besieged communities4.
B.1.5. . Increase in Illegal Firearms
The proliferation of illegal arms is a major contributor to insecurity in the country. There are a number of
factors that lead to this such as the porous borders, corrupt police officers who hire out their firearms
to criminals as well as the absence of a proper inventory of firearms within the police force and police
reservists and the country at large5. A 2012 report cited estimates of 210,000 illicit firearms in civilian
hands in the Country6. The 2016 Annual State of the National Security Report to Parliament placed the
number at over 650,0007.
Kenyan security agencies face a major challenge in ascertaining the exact number of firearms allocated
to each officer due to the absence of a proper, fool-proof inventory system. In some instances, a security
officer is issued with more than one firearm. This lacuna has given leeway for wanton use of firearms
with little room for accountability. A police officer informed members of the Police Reforms Working
Group (PRWG) that there are instances where the firearm cannot necessarily be traced to a particular
officer who fired it. The officer cited the recent Eastleigh shooting where the alleged officer in the video
used more than one firearm and several bullets to shoot two young men in a clear case of extrajudicial
execution (see above, p. 23). It is also in the public domain that some rogue police officers hire out their
guns to criminal gangs8.
1. http://www.chrips.or.ke/constitution/just-when-kenyas-military-needs-more-civilian-oversight-a-proposed-bill-calls-for-less/
2. h
ttp://www.nation.co.ke/news/President-Kenyatta-deploys-KDF-to-Baringo/1056-3853520-dpvy59/ accessed 21 May 2017
3. K
NCHR (2017) Press Statement: Prevailing Insecurity in the North Rift Region. Available here: http://knchr.org/
Por tals/0/PressStatements/KNCHR%20Baringo%20Update%20Press%20Statement%20-%202nd%20March.
pdf?ver=2017-03-02-142644-793
4. http://www.the-star.co.ke/news/2017/03/08/baringo-security-cops-accused-of-torching-houses-extorting-cash_c1519763
5. K
ey Informant Interview, PRWG, Nairobi, 25 May 2017
6. h
ttp://www.smallarmssurvey.org/fileadmin/docs/C-Special-reports/SAS-SR16-Kenya.pdf accessed 1 July 2017
7. h
ttps://www.standardmedia.co.ke/article/2000198259/650-000-illegal-firearms-in-circulation-in-kenya-report-reveals
accessed 1 July 2017
8. http://www.the-star.co.ke/news/2017/04/01/video-cops-caught-on-camera-killing-suspected-eastleigh-gang-members_
c1536104 and https://www.standardmedia.co.ke/article/2000191734/female-cop-in-kilifi-under-probe-for-allegedly-hiring-out-
her-gun-to-criminals accessed 21 May 2017

B.1.6. Surveillance and Digital Security
Proposed legislative amendments to the surveillance laws to curb security issues had the effect of
limiting the freedom of expression by criminalizing expression and thus imposing self-censure. The
Kenya Information and Communication Act (KICA), 2013 and the Media Council of Kenya Act 2013
made significant claw backs on the constitutionally guaranteed freedom of expression.
The Kenya Information and Communication (Amendment) Act (KICA1) and the Media Council Act 2013
infringed on media freedom and exposed the media to undue state control in addition to imposing
excessive fines on media houses and journalist for professional misconduct thus undermining their
independence2. Further the Act limited the right to freedom of expression by providing that this right
does not extend to the spread of propaganda for war, incitement to violence, spread of hate speech or
advocacy of hatred constituting ethnic incitement and vilification of others or incitement to cause harm
or on the basis of any ground of discrimination under Article 27 of the Constitution. The Act, by nature
of the ambiguity and lack of clarity of what constitutes any of these grounds for limitation, makes the
provision so broad and prone to potential abuse, effectively unjustifiably limiting the right to freedom of
expression.
In 2015, Geoffrey Andare moved to the Constitutional Court to challenge the constitutionality of Section
29 of KICA and to get a declaration that it was unjustifiable, unconstitutional and a violation of Article
33 and 50(2)(n) of the Constitution on freedom of expression and the right to fair administrative action
respectively. Section 29 of KICA criminalizes online publication of information that may be deemed
unlawful by state authorities and is couched in very vague language. Justice Mumbi Ngugi, in April
2016 declared that Section 29 of the KICA is unconstitutional3. Due to the extremely vague terms in that
section of the law, authorities have used the law to unfairly target and prosecute bloggers and online
publishers who, if convicted, would be liable to a fine not exceeding KES 50,000 or to imprisonment for
a term not exceeding three months or both.
Kenyan law prohibits digital surveillance and infringement on privacy. Article 31 of the Constitution,
safeguards the right to privacy which includes the right to privacy of communication and can only
be limited in accordance with Article 24 of the Constitution. Section 31 of the KICA outlaws unlawful
interception of communications by service providers. The right to privacy is further guaranteed under
regional and international treaties that Kenya has ratified.
Surveillance by state agencies has definitely impacted on the enjoyment of human rights and fundamental
freedoms as well as the work of organizations working towards their promotion, protection and fulfillment
in Kenya. Human rights organizations have documented the effects of surveillance directives under the
Jubilee Administration.
The NIS has been accused of breaching fundamental rights and the freedoms of individuals in Kenya. Of
particular mention was the revelation by Privacy International4 that the NIS is able to track and intercept
information from any mobile phone and can even bypass mobile service providers to access individuals
data, a clear violation of the right to privacy. The Security Laws Amendment Act, requires that the security
agencies obtain a court order before surveillance, therefore indicating some aspect of judicial oversight5.
1. A
vailable at http://kenyalaw.org/kl/fileadmin/pdfdownloads/AmendmentActs/2013/KenyaInformationandCommunications_
Amendment_Act2013.pdf accessed on 25 May 2017
2. A
rticle 19 Individual Submission to the UPR 21 (2015) https://uprdoc.ohchr.org accessed 25 May 27
3. h
ttp://kenyalaw.org/caselaw/cases/view/121033/ accessed 25 May 2017
4. P
rivacy International (2017) Track, Capture, Kill: Inside Communication Surveillance and Counterterrorism in Kenya,
available at https://www.privacyinternational.org/node/1366 accessed 25 May 27
5. Interview with Article 19 officer, Nairobi, May 2017

The National Coalition of Human Rights Defenders (NCHRD-K) has received reports of possible
surveillance of human rights defenders (HRDs) by state security organs.
While there is no scientific evidence of such surveillance, HRDs are apprehensive of surveillance
and tracking. About two years ago, there was a planned protest in Kibera (Nairobi) where most
of the HRDs were reportedly called by police officers and cautioned against taking part in the
protest. Very recently this year when there was the conflict in Laikipia County, a woman HRD
in Samburu reported that she had received threats from an Officer Commanding Station (OCS)
in Samburu threatening her for being too vocal on the conflict. The Woman HRD believes that
her phone calls were tapped and her communication was being tracked and surveilled1.
In June 2017, the Administrative coordinator of the Mathare Social Justice Center (MSJC) reported that
he was under police surveillance and had been arrested outside his house. This came a month after his
organization released a report on EJEs in Mathare, Nairobi and his participation in a series of community
dialogues2 on extrajudicial executions and killings in Nairobi3.
The Security agencies have, over time over the past five years, tended to adopt a strategy that heavily
relies on digital surveillance in the fight against insecurity but more so in their counter terrorism measures.
This strategy saw the government invest significantly in surveillance technology that includes security
cameras and a command center4 and accorded security agencies expanded authority to conduct digital
surveillance5.
The Consumers Federation of Kenya (COFEK) noted that Kenyas security agencies have been allocated
a budget to conduct continuous, population-scale surveillance of the whole country6. This came with
an order to mobile service providers to install a Device Management System that would allow the
Communications Authority of Kenya to monitor activities on their networks. The Authority denied that
the directive was to facilitate mass surveillance7. KHRC nonetheless instituted a case in March 2017
challenging the legality of this directive. This case is still pending in court8.
It has emerged that surveillance by state security agents contributes to enforced disappearances,
unlawful arrests, torture, extrajudicial killings and other human rights abuses under the pretext of fighting
crime9. In December 2014, Aljazeera documented confessions of security agents on state-sanctioned
executions, particularly highlighting the assassination of the controversial Mombasa Sheikh Abubaker
Shariff Ahmed (commonly known as Makaburi) on 1 April 201410. The report illustrates state security
agencies tracking and surveilling the communication, activities and movements of Makaburi over time
before his execution.
1. P
rivacy International (2017) Track, Capture, Kill: Inside Communication Surveillance and Counterterrorism in Kenya, available
at https://www.privacyinternational.org/node/1366
2. http://www.the-star.co.ke/news/2017/06/21/we-are-living-in-a-police-state-families-of-youth-slain-by-rogue-cops_c1579228
3. http://www.matharesocialjustice.org/eje-campaign/the-second-arrest-and-harassment-of-msjc-administrative-coordinator-
kinuthia-mwangi/ accessed 30 June 2017
4. G
overnment of Kenya, Urban Security Surveillance System available at https://www.delivery.go.ke/flagship/commandcentre
5. INCLO, Surveillance and Democracy: Chilling Tales from Around the World, available at http://www.khrc.or.ke/publications/133-
online-version-surveillance-and-democracy/file.html accessed 22 May 2017
6. h t t p : // w w w. c o f e k . c o . k e / i n d e x . p h p / n e w s - a n d - m e d i a / 1 7 0 7 - e x p o s e d - h o w - k e n y a n - g o v e r n m e n t - s p i e s - o n -
phones?showall=&start=1 accessed 9 June 2017
7. B
BC Africa, Kenya Denies Mass Mobile Phone Surveillance Plan, 17 February 2017 available at http://www.bbc.com/news/
world-africa-39005893 accessed 9 June 2017
8. h
ttp://www.khrc.or.ke/images/docs/PressStatementonLegalityoftheCAKdirective.pdf
9. The Star Newspaper, State Surveillance Facilitates Extrajudicial Killings,16 March 2017 available at http://www.the-star.co.ke/
news/2017/03/16/state-surveillance-facilitates-extrajudicial-killings-report_c1525350 accessed 23 May 2017
10. Inside Kenyas Death Squads available at https://interactive.aljazeera.com/aje/kenyadeathsquads/index.html#article1

B.1.7. Security Challenges in the Context of the 2017 General Elections
Kenya is set to hold its second General Election under the 2010 Constitution on 8 August 2017. Elections
in Kenya have, since the re-introduction of multiparty politics in 1992, raised security concerns and
unfortunately seen some of the worst insecurity incidences. The violence that ensued in 2007-2008 was
significant in creating the much needed urgency for pending institutional and legislative reforms within
the broader transitional justice agenda in Kenya. Security in electoral governance is one of the main
issues that civil society groups working on elections under the banner of Kura Yangu Sauti Yangu1 have
identified as needing a high level political discussion on preparedness to ensure peaceful and credible
elections in August 20172.
The resultant commissions of enquiry such as the Kreigler Commission, the Ransley Commission and
the Waki Commission provided recommendations that continue to form the blueprint and reference
points for the reform agenda in Kenya- be it on elections, security sector or the broader transitional
justice issues of institutional reforms, accountability and reparations for human rights violations. The
reform agenda therefore presents an undisputed nexus between elections and security in the country.
One of the major events in the electoral cycle is the process of nomination of candidates also known as
the party primaries. With the merger of a number of political parties with the Presidents Jubilee Party,
it became evident quite early in the process that the party primaries would be hotly contested with
aspirants coveting nomination by the major parties across the political divide.
In a proactive move, in March 2017, the police mapped out the hotspots where electoral violence could
erupt in the Country. Prior to this, in January 2017, the government acquired equipment, including the
armoured personnel carriers and heavy-military trucks, that was seen as part of its preparation to deal
with any eventual electoral violence3. The police identified 30 possible political hotspots which included
parts of Kiambu, Kisumu, Nairobi, Rift Valley and Coast regions. The potential pre-election and post-
election threats were identified as hate speech, zoning, incitement, engaging in organized gangs,
and disruption of opponents campaign rallies, refusal to accept results, disruption of vote counting,
vandalism, arson and calls for mass action4 5. In light of this, security agents were deployed to various
polling centers and were largely successful in averting security incidences.
A security officer attached to the Mbita MP was killed in Homa Bay County during the ODM6 nominations
on 24 April 20177. On 25 April 2017 during the Jubilee Party nominations in Starehe Constituency, within
Nairobi County, one man was attacked and stabbed by a mob for putting posters of a rival aspirant on
top of those of another aspirant, upon escaping he was hit by a matatu and later died from the injuries.8
1. Translated as My Vote, My Voice, Kura Yangu Sauti Yangu is a citizen movement spearheaded by a number of like-minded
civil society organizations to proactively support Kenyas preparations for the 2017 elections with a view to ensuring that the
country minimizes the risks related to dysfunctional electoral systems and practices which the country has experienced in
the recent elections. More information available at http://www.khrc.or.ke/2015-03-04-10-37-01/press-releases/537-kura-yangu-
sauti-yangu-press-statement-on-the-national-dialogue-on-the-2017-elections.html accessed 26 June 2017
2. h
ttp://www.khrc.or.ke/images/docs/PressStatementontheNationalDialogueFramework.pdf accessed 7 June 2017
3. h
ttps://www.crisisgroup.org/africa/horn-africa/kenya/248-kenyas-rift-valley-old-wounds-devolutions-new-anxieties accessed
29 June 2017
4. See http://www.nation.co.ke/news/Refusal-to-accept-poll-results-an-offence-/1056-3857458-15bvs5m/index.html
5. h
ttp://www.nation.co.ke/news/Refusal-to-accept-poll-results-an-offence-/1056-3857458-15bvs5m/index.html
6. O
range Democratic Movement (ODM) is one of the major political parties in Kenya
7. http://www.the-star.co.ke/news/2017/04/24/mbita-mp-bodyguard-killed-in-chaotic-homa-bay-odm-nominations_c1549201
8. K
HRC Elections Monitor interview, Nairobi, May 2017. This was also reported in the media see https://www.standardmedia.
co.ke/article/2001237735/one-person-stabbed-to-death-another-injured-in-jubilee-nominations-in-pangani-nairobi accessed
27 May 2017

Political parties held their party primaries in April and May 2017. The nomination process across the
board demonstrated a general lack of preparedness and coordination by the political parties. The
nomination process across the political divide witnessed a myriad of electoral and other offences
committed including massive voter bribery, intimidation, harassment destruction of property and voting
material, gender based violence and the general use of violence1.
The incidences of intimidation and violence targeted at marginalized communities, with evidence of hate
leaflets in areas like Nakuru and Kakamega counties2, is reminiscent of the political environment that
preceded the 2007/2008 post-election violence. These occurrences, against the backdrop of an already
charged electoral environment, have caused concerns and warnings of possible electoral violence3.
Although the KNCHR report, The Fallacious Vote4 noted that there was commendable police presence
in most of the polling centers, there were reports of incidences of violence in areas that the Commissions
monitors were deployed.
One victim of the 2007/2008 post-election violence told the research team:
I feel scared. I am worried. There is a dj vu feeling that the 2007/2008 violence is about to
happen again. There is a sense of anxiety that things will happen at a larger magnitude and
we will not be able to deal with the consequences5.
Over and above the concerns surrounding the security of election related equipment and material during
the Mass Voter Registration exercise by the IEBC6, InformAction reported other concerns that indicate
projected election-related fears and misgivings for instance due to perceived safety levels, some
citizens were strategically transferring to voting stations that they perceive to be safer for them7.
Already there are reports of early migration of citizens to areas perceived to be safer8. This situation
is worsened by the fact that the security agencies are arming in preparation to exert force to combat
violence during the elections9.
Further to these, there have been reports of an increase in the number of illegal gangs and the proliferation
of illegal firearms. In December 2016, the government gazetted a total of 90 illegal criminal groups, some
of whom were funded by politicians and colluded with police officers10. Among those that were identified
are groups like Superpower and Gaza gangs whose members have been extrajudicially executed by
security agencies as previously illustrated by this Report. The Mungiki11 group that was implicated in the
post-election violence in 2007 seems to have rebranded as Eminants of Mungiki and was also included
1. K
NCHR Key Informant Interview, 28 May 2017
2. In the Mid-Rift and Western parts of Kenya, respectively.
3. h
ttp://www.nation.co.ke/video/1951480-3907142-1h6w71z/index.html accessed 27 May 2017
4. K
NCHR, The Fallacious Vote: A Human Rights Account of the 2017 Political Parties Primaries, May 2017 Available at http://
www.knchr.org/Portals/0/OccasionalReports/Party Nominations Report KNCHR.pdf?ver=2017-05-15-110816-540 accessed
27 May 2017
5. Interview with a Sexual and Gender Based Violence Survivor of the 2007/2008 Post-Election Violence, Nairobi 5 June 2017
6. Independent Electoral and Boundaries Commission is a constitutional body responsible for the conduct and management of
elections and referenda in Kenya
7. E
lection Watch: Report 3 available at http://informaction.tv/index.php/news-from-the-field/item/583-election-watch-report-3
8. See https://www.theelephant.info/future/2017/07/06/election-2017-a-silent-panic-in-kenya/ accessed 9 July 2017
9. See http://www.nation.co.ke/news/Joseph-Boinnet-issues-chilling-warning-to-violence-perpetrators/1056-4018244-14icqavz/
index.html accessed 18 July 2017
10. h ttps://www.standardmedia.co.ke/article/2000228362/interior-cabinet-secretary-joseph-nkaissery-reveals-90-deadly-
criminal-gangs-in-kenya accessed 7 June 2017
11. M
ungiki is an outlawed ethnic religious group that was responsible for various crimes and human rights abuses during the
2007/2008 PEV including arson, forceful circumcision, rape, destruction of property, maiming among others. The Mungiki
group was used by politicians to perpetrate the violence.

A female candidate for Member of County Assembly (MCA) in Nairobi, told the research team that she
had received threats to her life and had been advised to consider getting some youth to protect her
during her campaign activities. She stated further:
An aspirant can easily spend more than KES 20,000 to get police escort as opposed to the
official KES 2,500. I am not sure that the police are prepared for the election. In the ward
where I am vying, there are security apprehensions with the fight for the MCA seat and yet
this is a small ward about 4 square kilometers. Aspirants must also get approval from the
Mungiki group and guarantee them that the aspirant, once elected will not interfere with their
interest. A few weeks ago there is an aspirant with a disability who was accosted by members
of the Mungiki group. There are too many guns and gangs for hire during this election period.
I am not sure that the police are prepared to deal with this1.
One respondent felt that the Womens Situation Room2 set up by UN Women and other groups is
Elitist and cannot address the concerns of the women on the ground, avert threats or enable
women to know how to deal with any violations if they happen. There is need for rapid
response. You cannot have eminent women sitting in a five-star hotel in Nairobi attempting
to address the situation on the ground through phone calls. The resources should be used to
train women on the ground on rapid response and empowering aspirants to view and ensure
they address the issues of women at the grassroots level3.
B. 2. Persisting weaknesses in the accountability process for Security Agencies
B.2.1. General Accountability for human rights violations by Security Agents
Historically, Kenyan state authorities have responded to security issues by creating specialized units to
deal with a particular security concern. Some of these specialized units include the Anti- Terror Police Unit
(ATPU), the Anti-Stock Theft Unit, Tourism Police Unit, Anti-Corruption Police Unit among others4. The
approach by the police has been to deploy the specialized units to deal with an insecurity incident within
their line of specialization and if they are unable to contain the issue to call for reinforcement from the
other units. This has sometimes led to instances where it becomes impossible to apportion responsibility
to the units and therefore leading to unaccountability for violations that may result during the security
operations. Further, the fact that the military does not have an independent civilian oversight mechanism,
unlike the police, makes them operate with impunity which again hinders seeking accountability over
their actions. Nevertheless, the National Assembly plays an oversight role over the military, whereas the
court martials deal with internal accountability of the military officers. These mechanisms are however
opaque and do not offer sufficient avenues for public scrutiny and participation.
Another challenge that hinders the accountability for abuse of the law and human rights abuses by the
security agents is the admissibility of digital evidence in legal proceedings, despite the fact that security
agents have been captured on camera committing human rights violations.
1. Interview with JM an MCA Aspirant, Nairobi, 8 June 2017

2. A
peace-building project that empowers women to be the leading force for democratic and peaceful elections. See http://
www.un.org/africarenewal/magazine/april-2015/women%E2%80%99s-situation-room-africa%E2%80%99s-unique-approach-
reducing-electoral-violence accessed 9 June 2017
3. K
ey Informant Interview, Nairobi, 8 June 2017
4. h
ttp://www.kenyapolice.go.ke/pages/search/71-background.html accessed 3 July 2017

Whereas there have been notable achievements in the documentation1 of the conduct of security agents
that has resulted in human rights abuses, the pursuit for accountability for these abuses has been
challenging. In most instances, victims, families and witnesses have been reluctant to come forward
and provide evidence to support the pursuit for accountability for fear of retaliation. On the other hand,
the security forces and key among them the KDF have been uncooperative with other agencies such
as the KNCHR in terms of availing the required information that would enable the KNCHR in following
crucial leads2.
B.2.2. Accountability of the Police
In 2007 and 2008 the eruption of widespread violence led to the death of 1,300 people, displaced 663,921,
left thousands more with long term injuries, and destroyed 78,254 houses3. This violence led to the
creation of a Commission of Inquiry into the Post-Election Violence (known as the Waki Commission).
The Waki Commission established that over 400 of those deaths could be attributed to police actions. In
addition to these the police and other security agents were found culpable of other crimes including rape
and other forms of sexual violence, which constitute crimes against humanity4. This violence combined
with continued cases of police excesses and extrajudicial killings by the police has led to the institution
of police oversight by the government as a key reforms agenda entrenched in the Constitution of Kenya.
Police oversight as envisioned in law is two-pronged. The Independent Policing Oversight Authority
(IPOA) provides external civilian-led oversight whereas the Internal Affairs Unit (IAU) within the National
Police Service Commission (NPSC) offers internal oversight of police conduct. Moreover, the NPSC is
mandated to carry out vetting of police officers and to take or recommend necessary measures to ensure
accountability and removal from the service of officers whose conduct is found to be in violation of the
Constitution, other relevant laws as well as the police standard operating procedures and regulations5.
The Independent Policing Oversight Authority (IPOA)
The Statutory body charged with the mandate of civilian oversight of policing in Kenya, is the Independent
Policing Oversight Authority (IPOA), established under the Independent Policing Oversight Act, 20116.
Specifically, IPOA is required to investigate police misconduct, monitor, review and audit investigations
and actions by the NPS Internal Affairs Unit (IAU), investigate deaths and serious injuries caused by the
police, review the functioning of internal disciplinary process, monitor and investigate policing operations
and deployment and conduct inspections of police premises7.
As at December 2016, IPOA has completed investigations of a paltry 465 of the total 8,232 complaints
received since its inception8. This means that about 94% of the complaints made to the Authority remain
unaddressed. IPOA concedes that this backlog was occasioned by the fact that as soon as IPOA was
established, complaints were already being made before the set up and operationalization of the secretariat.
1. S
everal state and non-state organs have released reports that document these. These include the KNCHR, IPOA, CAJ and Non-
Governmental Organizations
2. Key Informant Interview, KNCHR Vice-Chair, Nairobi May 2017
3. G
overnment of Kenya, Ministry of State for Special Programmes. (2012), Progress on Resettlement of Internally Displaced
Persons as at 6th January, 2012.
4. S
ee Waki Report available at http://www.kas.de/wf/doc/kas_16094-1522-2-30.pdf accessed 30 June 2017
5. h
ttp://www.npsc.go.ke/index.php/about-us/functions-of-the-commission accessed 28 May 2017
6. IPOA has a board of 8 members who serve on part-time basis. The inaugural board was sworn in in June 2012. IPOA activities
are implemented by a secretariat comprising of the management and staff. According to its Strategic Plan 2014-2018, IPOA
gets funding for its core activities from the National Treasury while development partners offer funding and technical assistance
for specific interventions. (see http://www.ipoa.go.ke/wp-content/uploads/2017/04/IPOA-Strategic-Plan-2014-2018.pdf ).
Complaints are made to IPOA through letters, email, telephone or online.
7. h
ttp://www.ipoa.go.ke/ipoa-mandate/ and IPOA Act 2011 available at http://kenyalaw.org/lex//actview.xql?actid=CAP.%2088
8. A
s at December 2016, 24% of these complaints were of deaths occasioned by the police

The IPOA also faced other challenges in its operations such as reduced budgetary allocation from
the government as well as high staff turnover. According to the IPOA performance report, 40% of the
complaints were concentrated in Nairobi1. As at May 2017, there were over 60 police officers facing
criminal prosecution and two convictions2. In 2016 two police officers were found guilty of manslaughter
and were sentenced to 7 years imprisonment3.
IPOA boasts of performing better than its counterparts globally since in the first 4 years of their existence
they have been able to institute prosecutions as contrasted to other independent police complaints
authorities of England and New Wales and South Africa4. IPOA is therefore perceived as a trailblazer
in global relative terms as well as in comparison to local constitutional and independent offices such
as the KNCHR and the Commission on Administrative Justice (CAJ). IPOA has shared best practices
and offered strategic consultations to Egypt, Ghana, Zimbabwe, Sierra Leone, Lesotho and Tanzania
on civilian oversight mechanisms5. In 2014, IPOA, together with partners and other stakeholders
commenced the Outstanding Police Service Awards (OPSA) to recognize and celebrate outstanding
police officers performance in service delivery and human rights.
IPOAs continued work has led to increasing scrutiny of the police, which was not present during the
2007 and 2008 post-election violence. However, the IPOA has faced a number of challenges. First, the
success of the IPOA is dependent on total cooperation from the police they are investigating. Often the
police fail to provide adequate cooperation for IPOA to prosecute police officers allegedly responsible
for committing crimes. In March 2016, IPOA released a report stating that police deliberately bungle
some of their investigations in order to protect fellow police officers6. Over and above this, accessibility
to IPOA has been a challenge for most people. Until 2017 the Authority largely operated from its Nairobi
headquarters before it opened offices in Mombasa, Kisumu and Garissa7.
Secondly, under the Jubilee Administration, there have been multiple attempts by parliament to strip IPOA
of some of their ability to investigate. In 2013 the Parliament unsuccessfully proposed amendments
to the National Police Service Act and the National Police Service Commission Act that would have
weakened civilian oversight over police abuses, and increased executive control over the police8. Again
in 2016, an amendment was brought to allow police to withhold information they believed to be privileged
from IPOA9. The pressure from human rights organizations on the legislature prevented the bill from
being adopted and passed by Parliament.
The performance of IPOA, which had previously been seen as a weak institution, especially given that it is
not a constitutional commission per se, may have been the motivation behind the proposed amendments
to the IPOA Act to curtail its powers. In 2016, the National Assembly proposed to amend Section 7(1)(a)
(vii) of the IPOA Act to curtail the powers of the Authority to summon a serving or retired police officer
to appear before it and to produce any document, thing or information relevant to the function of IPOA.
1. h
ttp://www.ipoa.go.ke/wp-content/uploads/2017/04/IPOA-Performance-Report-July-December-2016.pdf accessed 28 May
2017
2. K
ey Informant Interview, Tom Kagwe, IPOA, Nairobi, May 2017
3. s
ee http://www.ipoa.go.ke/kwekwe-mwandaza-conviction-a-case-of-misuse-of-firearms/ accessed 30 June 2017
4. K
ey Informant Interview, IPOA, Nairobi, May 2017
5. Interview with IPOA official, Nairobi, May 2017
6. Ibid.
7. h
ttp://www.ipoa.go.ke/wp-content/uploads/2017/04/IPOA-Performance-Report-January-June-2016.pdf accessed 28 May
2017
8. L
efkow, Dispatches: Kenya Stifles Media, Restricts Police Oversight. Human Rights Watch, 09 December 2013, available at
https://www.hrw.org/news/2013/12/09/dispatches-kenya-stifles-media-restricts-police-oversight accessed 02 June 2017
9. K
agwe, Privileged Information Is a Direct Assault on IPOA Functions. The Star, Kenya. 18 February 2017, available at http://
www.the-star.co.ke/news/2017/02/18/privileged-information-is-a-direct-assault-on-ipoa-functions_c1507557 accessed 08
June 2017

The proposed amendment sought to introduce a requirement to comply with a procedure for producing
a privileged document and thus limiting the documents, things or information that can be shared with
IPOA- a clear contravention of Article 35 of the Constitution as it would limit the Authority and the public
the right to information1. The amendments were withdrawn by the government on 9 February 20172.
The independence of IPOA had previously been threatened in late 2015 when the National Assembly
proposed amendments to Section 14 of the IPOA Act to give the President powers to remove the
Chairperson or any member of the Authority from office without the requirement for a recommendation
by a suitable tribunal. This was a clear onslaught on the security of tenure of the IPOA Board as guaranteed
under Section 4 of its constitutive Act that clearly states that IPOA is not subject to any person, authority
or office and further provides for an elaborate and stringent procedure for the removal of the members
and chairperson of the Board. On a broader spectrum, the proposed amendment would have negated
the constitutional values and principles by concentrating state power in the presidency and seeking to
control and limit the functions of independent offices3. The proposed amendments were later withdrawn
by the Leader of the Majority Party in Parliament in October 20164.
The KNCHR is an independent national human rights institution established under the Constitution. As a
watchdog over the government on human rights issues it investigates and provides redress for human
rights abuses. In its audit of the status of police reforms in 2015, KNCHR noted that the oversight and
accountability mechanisms faced a number of challenges. For instance, IPOA was unable to effectively
discharge its mandate due to poor collaboration and access to information from other agencies thus
delaying their response which eroded public confidence. The police felt that IPOA had overstepped its
mandate of oversight and advisory and delved into investigations and had caused fear among the police,
hence affecting service delivery. In addition to this, NPSC felt that IPOA rushes to condemn the police
without due regard to procedures and that IPOA is largely reluctant to carry out investigations. The audit
further noted the seeming overlap, conflict and competition between NPSC and IPOA.5
NPSC Oversight Mandate
The NPSC acts as the human resources arm of the Police Service. Since the establishment of the NPSC,
some major structures have been put in place to ensure that the Commission is able to discharge its
mandate in terms of the requisite policies and regulations. The NPSC has finalized various regulations
such as the Recruitment and Appointment Regulations, Transfer and Deployment Regulations, Discipline
Regulations among others. However, these regulations are yet to be fully implemented and thus their
effectiveness are yet to be fully realized.
Notwithstanding this, a key informant from the NPSC decried the lack of proper and clear policies on
consultations and decision making, which has seen the NPSC being dependent on the chair making
nearly all the decisions or being consulted on virtually everything.
1. http://www.the-star.co.ke/news/2017/02/14/who-will-guard-the-cops-if-ipoa-cant-access-privileged-information_c1495241
2. h ttps://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0ahUKEwjJq4rE8-3UA
hULbxQKHeWSBfQQFggnMAA&url=http%3A%2F%2Fwww.parliament.go.ke%2Fthe-national-assembly%2Fhouse-
business%2Fmotions-tracker%2Fitem%2Fdownload%2F3394_7557f5d4c415971eaa2c6de05d1cd796&usg=AFQjCNGxEj53yu
I6BREcEFDmlzE5S1Dl1Q accessed 30 June 2017
3. K
ey Informant Interview, IPOA Board member, Nairobi, June 2017. See also http://www.nation.co.ke/oped/Opinion/Kenyans-
must-defeat-threats-against-police-oversight/440808-2906620-jkdo4m/index.html accessed 30 June 2017
4. S
ee http://info.mzalendo.com/hansard/sitting/national_assembly/2015-10-29-14-30-00 accessed 3 July 2017
5. K
NCHR (2015) Audit of the Status of Police Reforms in Kenya: A Joint Report by the Kenya National Commission on Human
Rights & Centre for Human Rights and Peace (The University of Nairobi)

There are some gaps that need to be addressed such as the appointment of a vice-chair and the
replacement of two commissioners, at a personnel level, to make the total of nine commissioners as
per the NPSC Act. The greatest challenge has been on the implementation of the policies as well as the
adequate discharge of its mandate.
The Commission has been faced both internal and external challenges in the last five years. Unlike IPOA,
the institution was unable to fundraise from other institutions outside of the government on the basis
that they were a security institution. The NPSC has not been insulated from external influence. Whereas
the Secretariat is free of influence, the same cannot be said of the commissioners. One incident of
clear political influence on the decision of the commissioners was with regards to the removal and
reinstatement of Deputy Commissioner of Police, Kingori Mwangi1.
One respondent from within the NPSC cited the lack of strategic leadership and capacity gaps as some
of the internal challenges that the Commission faces. The Commission lacks researchers while some
officers are incompetent and lack vision. At the time of the interview, several officers at the NPSC had
been sent on compulsory leave in order not to interfere with the ongoing interview process for officers
at the secretariat. The respondent further noted that the independence of the NPSC is hampered by the
fact that most of the staff members at the secretariat level are seconded from other state departments
and ministries such as the Attorney-Generals office or Treasury. This poses a challenge because there
is no opportunity or space to invest in the continuity of the institution because once the seconded staff
leave there remains a capacity gap. As contrasted with other Commissions and Independent Offices
that were established under the new constitutional dispensation, the NPSC should have invested in
building the institutions infrastructure to secure its existence and sustainability. The NPSC commenced
recruitment of independent officers in May 2017 in order to hire new staff as opposed to the officers who
had been seconded from other state departments and ministries.
Police Vetting
The NPSC is mandated to vet police officers to establish their suitability to continue serving, based on
their qualifications and conduct. The vetting process is conducted by the NPSC commissioners and co-
opted members based on the discretion of the NPSC. The NPSC received information from the NPS as
well as the members of the public on the officers being vetted. The decision of the NPSC is not final, it
can be reviewed or appealed against2.
Police vetting as a means of ensuring accountability for police action, including human rights abuses,
has run into many hurdles and has not been as effective as was envisaged under the police reforms
debate. Overall, the extent to which the vetting has achieved accountability for human rights violations
or increased confidence in the police remains elusive. The vetting process was initially targeted to take
18 months. As at the end of May 2017, NPSC had only vetted 3,500 of the over 100,000 officers in
the National Police Service. Although at least 500 of those vetted were recommended for dismissal,
less than 30 have been effectively removed from the Service as at May 2017. The reasons for removal
range from financial impropriety, human rights abuses, lack of integrity, unprofessionalism, rape and
defilement3.
The vetting process has been criticized for having started without a clear criterion for vetting or even pilot
testing in December 2013. The NPSC began the exercise without conducting proper public awareness to
ensure that the public submitted information against the officers that were being vetted.
1. Interview with an officer at the NPSC, Nairobi, May 2017

2. S
ee http://www.npsc.go.ke/index.php/vetting-faqs accessed 3 July 2017
3. N
PSC Key Informant Interview, Nairobi, May 2017 also see https://www.standardmedia.co.ke/article/2000122774/12-top-
officers-axed-as-npsc-releases-vetting-results accessed 3 July 2017

Further, whereas in the initial stages there was considerable public participation especially by CSOs and
the media, the NPSC Chair stopped public sessions1 in early 2017 ostensibly because there were certain
serious security concerns that may arise in the course of the vetting and which could compromise the
countrys security and that of the officers2.
The process has also been faulted on account of being conducted by persons within NPSC whose
credibility and integrity has been questioned therefore rendering them incapable of carrying out objective
vetting3. For instance, some of the commissioners have been adversely mentioned in fraud while others
academic qualifications are questionable. There are also specific questions regarding the appointment
of the Chair of the NPSC, Johnston Kavuludi, who retired from public service in the 1990s. The Chair
was also adversely mentioned as being among the people being investigated for fraud4. Appointments
based on patronage and alliances potentially pose problems-perceived or real- on the independence of
the appointees5.
One of the ways in which the officers have been able to claw back on the gains is by going to court to
challenge the outcome of the vetting process and have been reinstated as a result. In the opinion of some,
the judicial decisions have been counter-productive to the reforms agenda and process6. For instance,
an officer can be recommended for removal from service on the basis of evidence of committing the
offence of defilement but the courts decide that the process was unfair since the officer was not given
an opportunity to question the complainant or victim at the time of vetting7.
Over the past five years, IPOA has made over 300 recommendations to the NPSC Disciplinary Committee
but these have not been acted upon. This is according to an internal audit carried out by the NPSC in
2016. Similar recommendations were made by the Ethics and Anti-Corruption Commission (EACC)8 and
not acted upon. Despite the fact that disciplinary action was not taken as recommended, an insider
within the NPSC in an interview with the research team opined that whereas, admittedly, the information
shared by other agencies may not meet the evidentiary threshold for criminal sanction, the same would
be sufficient to sustain and justify administrative action and would have particularly been useful in the
vetting process.
The NPSCs efficiency and delivery on its mandate of holding officers accountable has also been
significantly hampered by its frosty relationship with other agencies such as IPOA. One respondent who
works at the NPSC informed the research team that there have been instances where officers at the
NPSC Secretariat have been threatened with disciplinary action and given show-cause letters by NPSC
for even attending meetings convened by IPOA9.
1. These sessions are open to the public, media and civil society organizations thus allowing public participation and encouraging
transparency in the process
2. h
ttp://www.the-star.co.ke/news/2017/04/20/no-more-public-police-vetting-till-after-election_c1546091 accessed 2 June 2017.
3. S
ee http://www.nation.co.ke/news/Credibility-of-police-vetting-doubtful/1056-3926226-p722uyz/index.html accessed 3 July
2017
4. S
ee http://www.nation.co.ke/news/Kavuludi-panel-lacks-integrity/1056-2764264-h00khhz/index.html accessed 3 July 2017
5. IPOA Key Informant Interview, Nairobi, May 2017
6. N
PSC Key Informant Interview, Nairobi, May 2017
7. s
ee http://www.nation.co.ke/news/Six-sacked-police-chiefs-reinstated/1056-3477456-urmcqqz/index.html accessed 3 July
2017
8. E
ACC is established under the Ethics and Anti-Corruption Act, 2011 to prevent and combat corruption and economic crimes.
http://www.eacc.go.ke/default.asp?pageid=3 accessed 3 July 2017
9. K
ey Informant Interview, Nairobi, May 2017

Internal Affairs Unit
The Internal Affairs Unit is established under Article 87 of the National Police Service (NPS) Act. Its
mandate is to receive and investigate complaints against the police; promote discipline; and keep a
record of any complaint or investigation1. The Unit is statutorily required to work with the IPOA in ensuring
internal accountability of the police.
The Role of the Judiciary in Enhancing Police Accountability
Section 88 of the NPS Act holds police officers liable before criminal courts for criminal offences
committed in the line of duty2. This has allowed the judiciary to have legal right to punish police officers
who are culpable of offences committed in the course of discharging their mandate. This judicial
oversight was limited up until 2014 due to the use of police prosecutors in criminal cases3. Although the
2010 Constitution created the office of the Director of Public Prosecution in Article 157 as an independent
office, the government did not begin phasing out all police prosecutors until five years after the creation
of the office4. Ideally, this will help with the judiciary oversight as independent prosecutors should be
more willing to prosecute police officers than police prosecutors were5.
Although oversight for the police has grown over the years since the 2007 elections, it is apparent that
some within the government are attempting to undo these advances, which raises serious concerns in
the perspective of the forthcoming August 2017 elections.
State of Police Reforms
Other aspects of the reform agenda that are critical to the transformation of the security sector are still
lacking in totality or lagging behind. For instance, the National Police Scheme of Service6 is still lacking
and this is inhibitive towards having objective assessment of the service. Further, although the Service
Standing Orders7 have been completed they have not been adopted. Housing conditions for the police
are still poor and inadequate. Despite the governments reports that they have put up new houses for
the police, the practice is that these are allocated to the higher ranking officers. In addition to this, the
police facilities police stations and posts are still in need of refurbishment and proper equipping and
continue to fall short of the international standards. Some police stations such as Hola Police Station in
Tana River County, lack basic amenities like water and electricity8.
Police reforms as envisaged, have been nipped in the bud through the myriad attempts at amending
the implementing legislation which had the effect of diminishing certain constitutional gains, the most
notable of these as previously noted in this report, were the amendments to the National Police Service
Act and the omnibus Security Laws (Amendment) Act of 2014.
1. N
ational Police Service, Internal Affairs Unit. Internal Affairs Mandate. National Police Service, (2011) available at http://www.
nationalpolice.go.ke/2015-09-21-17-23-32/internaaffairs.html accessed 8 June 2017
2. A
ct No. 11A of 2011, Revised 2015, Pg. 45.
3. O
lingo, DPPs Dilemma on Police Prosecution. The Standard. 04 April 2012, available at https://www.standardmedia.co.ke/
article/2000055491/dpp-s-dilemma-on-police-prosecution accessed 08 June 2017
4. O
nyango, Kenya to Eliminate Police Prosecutors as Part of Judicial Reforms.Zegabi, 02 Jan. 2014 available at http://www.
zegabi.com/articles/6593 accessed 08 June 2017.
5. The Judiciary, Bail and Bond: Policy Guidelines, March 2015, available at http://www.judiciary.go.ke/portal/assets/filemanager_
uploads/Downloads/COMBINED%20Bail%20and%20Bond%20Policy%20Guidelines-1.pdf accessed 22 May 2017
6. The Scheme of Service provides guidelines on the qualifications, recruitment and promotion process of the police into the
different ranks of service. The Scheme of Service was expected to have been adopted in September 2016 but this is still pending.
See also https://www.standardmedia.co.ke/article/2000210503/police-commission-promotes-senior-officers-to-enhance-
operations-ahead-of-2017-elections accessed 3 July 2017
7. These are administrative orders required under the NPS Act for for the general control, administration, good order, direction and
information of the Police Service
8. Interview with a CSO representative in the Police Reforms Working Group, Nairobi, May 2017

Police reforms will not happen without a total transformation and overhaul of the police.
There are not just a few rotten potatoes but many rotten potatoes within the police service
that must be totally removed from the system. The vetting process has demonstrated the
magnitude of the problem and the cover-up of the same1.
The existence of rogue security enforcement officers was confirmed by the KNCHR in its field work
in 26 counties. State and non-State actors interviewed by the Commission confirmed the existence of
rogue officers who often work with criminals in at least 11 of the 26 counties which included Nairobi,
Kirinyaga, Lamu, Mombasa, Kisii, Bungoma and others2. These associations and operations no doubt
counter efforts aimed at ensuring the security of the population. Furthermore, the existence of militia
groups and gangs3 not only contributes to insecurity but inhibits security operations and undoubtedly
contributes to the violation of rights and freedoms. These revelations make it all the more necessary to
tighten the accountability measures against police excesses and actions.
B.2.3 Accountability of the Military
In an attempt to establish some oversight over the military, the Legislature passed in 2012 the Kenyan
Defense Forces Act, which in section 56 allowed the Judiciary to have jurisdiction over soldiers whenever
a criminal or civil offense was committed. This was an important move towards Judiciary oversight in
addition to the oversight mechanisms under the Parliament and the Cabinet Secretary for Defence.
Although there have been minimal strides since 2007 elections to increase oversight, there has been
an attempt to remove all instruments of civil accountability for KDF. As of 2015 Parliament considered
amending the 2012 Kenyan Defense Forces Act. If it had passed, the Defense Cabinet Secretary would no
longer have been required to submit an annual report to the president and parliament on the expenditure
and work of the ministry. The amendment bill also sought to delete the requirement that the Auditor
General scrutinizes the financial records of the KDF. Parliament did not pass the bill.
The KDF Amendment Bill 2015 would have given express authority to the Chief of the Defence Forces
to deploy KDF in civilian operations. The move shifts operational and command powers away from
the Inspector General of Police (IGP) and the Defence Cabinet Secretary (CS), who both are the
representatives of the people over the military. The bill did not pass as initially drafted. As discussed
above pressure from human rights organizations4 led to changes in the bill. The KDF Amendment Act
adopted in December 2016, stipulates that the Cabinet Secretary is required to inform the National
Assembly whenever the KDF is deployed. Yet the Act also gives the Defence Council the ability to deploy
troops in any place within Kenya that is affected by unrest or instability5. As the 2017 elections draw
closer, some are concerned that the goal of decreasing military oversight is motivated to use the military
during any political unrest the elections may cause. Police reforms have seemed to stall and President
Kenyatta has turned to the military in the face of increasing domestic threats within Kenya6.
As stated above, the use of the military while dealing with domestic issues is disconcerting for the
people of Kenya due to the past misdeeds of the KDF and their brutal nature.
1. IPOA Board Member, Nairobi, May 2017

2. S
upra KNCHR Audit page 26
3. In December 2016, the immediate former Cabinet Secretary Ministry of Interior, the late Joseph Nkaissery gazetted over 90
illegal gangs including Gaza gang operating in Kayole Nairobi and Superpower operating in Eastleigh, Nairobi see https://www.
standardmedia.co.ke/article/2000228362/interior-cabinet-secretary-joseph-nkaissery-reveals-90-deadly-criminal-gangs-in-
kenya accessed 3 July 2017
4. h ttp://www.imlu.org/2011-06-30-23-44-4/2011-08-04-18-06-26/news/item/116-the-independent-medico-legal-unit-
memorandum-on-kenya-defence-forces-amendment-bill-of-2015.html accessed 3 July 2017
5. A
ct No. 44 of 2016, Republic of Kenya, available at http://kenyalaw.org/kl/fileadmin/pdfdownloads/AmendmentActs/2016/
KenyaDefenceForces_Amendment_Act_44of2016.pdf pg.1128 accessed 7 June 2017
6. A
nalo, New Law to Protect KDF from Scrutiny, The East African, 8 August 2015.

As KNCHR reported in 2015 there were 120 cases of the KDF violating human rights, including 25
extrajudicial killings and 81 enforced disappearances in an attempt to crackdown on terrorism1.
Journalists for Justice documented the corruption occurring with the KDF while in Somalia. Evidence
presented alleges that the KDF is engaging in the illegal sugar and charcoal trade, which is also helping
to fund the terrorist group Al Shabaab that the KDF was sent to Somalia to deal with2. Finally in one of
KDFs most public interventions, during the terrorist attack at the Westgate Mall, Nairobi, CCTV3 footage
showed KDF forces looting stores while conducting the rescue missions. Although President Kenyatta
promised a commission of inquiry into these claims of corruption, the commission was never formed4.
B.3. Abuse of Legislative Processes to Address Security Concerns and Fight Dissent
The Jubilee Administration has used legislative and policy reform to address insecurity and terrorist
threats and to fight dissenting voices.The most notable was the introduction of the Security Laws
(Amendment) Act in 2014 which sought to amend various sections of more than 20 laws touching
on security. The gist of the amendments was ostensibly to confer extra powers on security forces to
enable them to counter terrorism and address the rising insecurity in the Country. Eight of the proposed
amendments were a clear negation of constitutionally safeguarded rights and fundamental freedoms5.
A ruling delivered by a five-judge bench of the High Court in Nairobi declared Section 12 of the Security
Laws (Amendment) Act (SLAA), Section 66A of the Penal Code and proposed amendments to the
Prevention of Terrorism Act violated the freedom of expression and the media contrary to Articles 33 and
34 of the Constitution.The SLAA was unconstitutional as its Section 16 and Section 42A of the Criminal
Procedure Code violate the rights of an accused person to prior information of the prosecution evidence
contrary to Article 49 of the Constitution.
The Kenya Defence Forces (Amendment) Act 20166, positively amended some errors in the Kenya
Defence Forces Act more so on the definition of torture and other forms of cruel, inhuman and degrading
treatment and also provided clarity on the deployment of the KDF only with the approval of the National
Assembly. However, some of the other clauses sought to water down the accountability framework
envisioned under the KDF Act and the Constitution. Civil Society Organizations noted the sweeping
powers that the original bill had given to the President with respect to security operations in addition to
the lack of accountability and clear chain of command and powers. Further, the Bill had also proposed
the use of auxiliary reserve forces without due regard to the separation and thus creating room for legal
ambiguity and uncertainty, which would further weaken the accountability measures7.
1. K
enya National Commission on Human Rights, Fighting Terror with Terror. Press Release: 15 September 2015 available at
http://www.knchr.org/Portals/0/PressStatements/Press%20statement%20on%20Error%20of%20fighting%20terror%20
with%20terror.pdf accessed 7 June 2017
2. J
ournalists for Justice, (2015) Black and White p. 3-4
3. C
losed Circuit Television
4. Commission of Inquiry That Never Was, Daily Nation, 20 September 2014, available at http://www.nation.co.ke/news/
Commission-of-inquiry-that-never-was/1056-2460374-4rowhx/index.html accessed 08 June 2017
5. R
uling available at http://www.klrc.go.ke/images/images/downloads/SLAA-ruling.pdf accessed 25 May 2017
6. A
vailable at http://kenyalaw.org/kl/fileadmin/pdfdownloads/AmendmentActs/2016/KenyaDefenceForces_Amendment_
Act_44of2016.pdf accessed 25 May 2017
7. S
ee IMLU Memorandum on the Proposed KDF Amendment Act available at http://www.imlu.org/2011-06-30-23-44-4/2011-
08-04-18-06-26/news/item/116-the-independent-medico-legal-unit-memorandum-on-kenya-defence-forces-amendment-bill-
of-2015.html accessed 25 May 2017

C Security Management and Capacity
C.1. Infrastructure and Capacity of Security Agencies
The Ransley Report recommended the establishment of a well-trained and equipped police service. In
early 2017, President Kenyatta reported that his government had invested heavily in training more police
officers, improved the terms of service and welfare of the officers by expanding police housing units and
establishing a health insurance scheme for police officers.
Furthermore, the President also noted that the government had installed surveillance systems in
Mombasa and Nairobi1.
The Jubilee Administration reports having made strategic investment in the security sector to maintain
peace and security in the country to meet the modern day challenges of security including terrorism
and cybercrime. Police mobility, better equipment, security cameras and a command centre have been
the hallmarks of this investment. According to the government, this investment has improved national
security and reduced crime incidences, enhanced aerial surveillance, enhanced physical security of the
police officers through provision of body armour and advanced operational equipment. The government
also projects increased efficiency in the resolution of cases through using forensic science and having a
fully functional, independent and operational IPOA2. It has deployed KDF in Somalia and South Sudan as
part of peacekeeping initiatives and internally in areas such as the Boni Forest in support of the National
Police and other hot spots to deal with various crimes3. The Government cites among its achievements
over the past five years the enhanced mobility and improved service delivery, enhanced patrols leading
to crime reduction.
The Presidents Delivery Unit reports the acquisition of 3,672 vehicles for the National Police Service,
492 vehicles for the National Administration Police, 5,000 motorbikes, 3 choppers and 30 Armoured
Personnel Carriers and the setting up of 204 new police stations over the past five years. However, there
is no indication of the locations of these new police stations. In addition to this the government, reports
the existence of a forensic laboratory to introduce modern investigative techniques to the police force
which was to be ready by April 20174.
The government reports indicate that the number of police officers has increased bringing the police-
citizen ratio to 1:390, way above the UN recommended ratio of 1:4505. The Jubilee Administration has
recruited, trained and deployed an additional 36,000 police officers and 1,739 police reservists and has
also recruited 10,000 police recruits set to undergo training. This brings the total number of police to
119,165 officers and 9,348 reservists in service. In addition to this, the government has completed an
additional 250 housing units for the police with an additional 1,600 units which were set for completion
in May 2017 and additional 78 prison staff houses constructed6.
1. h
ttps://www.delivery.go.ke/ministryprojects/1 accessed 8 June 2017
2.Ibid
3. R
aychelle Omamo, Cabinet Secretary, Ministry of Defence available at https://www.delivery.go.ke/ministryprojects/2 accessed
8 June 2017
4. Ibid
5. S
ee https://africacheck.org/reports/is-there-1-police-officer-serving-every-390-kenyans-as-kenyatta-said/ accessed 29 June
2017
6. Ibid

The Government was able to, for the first time, provide group medical and life insurance cover for police
officers. Currently, 119,165 police officers and Kenya Prisons Officers are beneficiaries of this flagship
initiative. This has ensured access to medical services and has been viewed as a morale booster for
police officers. This is laudable as a step in the right direction in seeking to ensure that police officers
enjoy their rights to the highest attainable standards of health as guaranteed under Article 43 of the
Constitution1.
The group medical and life insurance under the administration of AON Minet commenced in October
2016. Barely a month after this, the police officers started complaining that they were unable to access
services from health facilities under the cover2. These challenges were acknowledged by the Inspector
General of Police Joseph Boinett3. This left police officers exposed and without access to health care
insurance since the previous cover under the National Hospital Insurance Fund (NHIF) had been stopped4.
A respondent from the security sector decried the inefficiency and frustrations of the new scheme and
termed it a fraud in terms of the procurement process5, delivery and the benefits offered6.
While the government lauds its efforts on the security sector front, most of these flagship and hallmark
achievements have been shrouded with doubt as to the actual impact of the achievements on the ground.
Moreover, the process of acquisition and the quality of the equipment have been the subject of public
scrutiny following reports of their malfunction and endangering the lives of security officers. Security
personnel complained of the safety of the APCs and requested for a testing of the APCs durability and
efficiency. The media reported that a group of General Service Unit (GSU) officers asked the suppliers
to get into the vehicle but they declined indicating that they would not endanger his life by getting into
the APCbecause it was not safe7. Despite this, the Government defended the quality of the vehicles
claiming that they meet the international standards8.
Whereas the government has been able to surpass the UN recommended police to civilian ratio, there
is hardly any tangible evidence on the impact that this has had in terms of actual service delivery and
improved security in the country. Respondents from the security sector and individuals working on
security sector reforms raised concerns as to the lack of information on the deployment of the additional
police officers, many of whom are believed to have been assigned to offering personal security for
government officials.
C.2. Budget Allocations for Security
While oversight has continued to grow, there has also been greater allocations to Kenyas security forces
during that time. The Kenyan Defence Force (KDF) has been expanding over the years since the 2007
elections due to security threats along the Kenyan border.
1. S
upra
2. h ttps://www.standardmedia.co.ke/business/article/2001231728/buck-passing-hurts-new-kenya-police-medical-cover
3. h
ttp://www.capitalfm.co.ke/news/2016/10/boinnet-assures-police-medical-cover-will-effective/ accessed 8 June 2017
4. h
ttps://www.standardmedia.co.ke/article/2000221998/new-medical-scheme-not-working-for-us-police-say
5. h
ttps://www.standardmedia.co.ke/article/2000206587/police-accused-of-fraud-in-sh1-7-billion-insurance-battle accessed 8
June 2017
6. Interview with an official of the National Police Service Commission, Nairobi, May 2017
7. h
ttps://www.standardmedia.co.ke/article/2001241799/8-killed-as-armoured-vehicle-runs-over-explosives-in-lamu accessed 8
June 2017
8. h
ttp://allafrica.com/stories/201706060684.html Immediate former, Security Minister of Interior, the late Joseph Nkaissery
appearing before the Parliamentary Committee on Administration of National Security on 6 June 2017

In attempts to battle Al Shabaab, the government has increased the budget for the KDF over KES 91
Billion ($870 Million)1.
Over the years the budget allocation for security has continued to increase and has tripled in a span of
4 years. In the 2013-2014 fiscal year the security budget allocation was KES 89.4 Billion, it increased in
2014-2015 to KES 90.7 Billion, in 2015-2016 there was a major increment to KES 223.9 Billion and in
2016-2017 the allocation rose to KES 265 Billion2.
In addition to the increase in budgetary allocation towards security, there have been concerns over the
lack of transparency, questionable procurement processes and prudent expenditure in the security
sector3. The Auditor Generals report of 2014/15 deemed KES 4,617,843,750 expenditure by the State
Department of Interior to have been wasted while in Defence KES 1,102,678,054 was deemed as wasted4.
C.3. Community Policing
Community policing has been defined as the voluntary participation of persons within a locality in
the prevention of crime and the maintenance of peace and order in manner that ensures the police
collaborate with that community and have interventions that are responsive to their needs5. In Kenya,
community policing forums and committees as envisaged under Part XI of the National Police Service
Act were aimed at providing an opportunity for the police to liaise with communities in order to establish
and maintain partnerships with the communities, promote cooperation between the police and the
community in meeting the policing needs of the community, improve the rendering of police service to
the community and improve transparency and accountability of the police to the community.
In 2013, Parliament passed the National Government Coordination Act6 which gave rise to the National
Government Administration Officers (NGAOs) essentially retaining most of the elements of the provincial
administration that had been scrapped under the new constitutional dispensation. The NGAOs basically
constitute officers from the level of chiefs up to that of county commissioners.This structure has
bred confusion in terms of the policing structure in the country and more so as regards community
policing7. In 2014, President Kenyatta gave county commissioners executive powers including on
security. This sparked controversy as it was largely viewed as an unconstitutional move to reinstate
the old provincial administration order that had been repealed by the new Constitution8. The structure
has further caused tensions between the police and the county commissioners in instances where the
county commissioners summon police officers in their counties. The chain of command is also distorted
leaving police officers confused as to whether to respond to their county commander of police or to the
county commissioners9.
1. M
utahi, Just When Kenyas Military Needs More Civilian Oversight, a Proposed Bill Calls for Less. African Arguments, 09
May 2017, available at http://africanarguments.org/2015/10/01/just-when-kenyas-military-needs-more-civilian-oversight-a-
proposed-bill-calls-for-less/ accessed 28 April 2017
2. h
ttp://www.capitalfm.co.ke/news/2015/06/security-sector-gets-lion-share-in-budget-allocation/ accessed 24 May 2017
3. http://www.nation.co.ke/news/Auditor-General-questions-Sh3-8bn-expenses-at-Interior-ministry/1056-2942920-bgi5bu/index.
htmlaccessed 29 June 2017
4. S
ee Auditor Generals Report http://www.oagkenya.go.ke/index.php/reports/cat_view/2-reports/9-national-government-and-
state-corporations/69-government-ministries at pp. 24-26 accessed 29 June 2017
5. S
ee Section 2 of the NPS Act, 2011
6. A
vailable at www.kenyalaw.org accessed 20 May 2017
7. h
ttp://www.chrips.or.ke/wp-content/uploads/2017/05/Strengthening-Community-Policing-in-Kenya-Brief.pdf at p.4 accessed
29 June 2017
8. h ttps://www.standardmedia.co.ke/article/2000121313/president-uhuru-kenyatta-gives-more-powers-to-county-
commissioners accessed 29 June 2017
9. Interview with IPOA Official, Nairobi May 2017. The official informed the research team that County commanders summon
police officers and require them to respond in the same speed and manner that a county commander would respond when
summoned by the President.

This makes it difficult to coordinate security at the county levels, especially when dealing with certain
issues such as terrorist attacks which occur at the county levels.
According to the Independent Policing Oversight Authority (IPOA), the police officers cannot be expected
to report to the NGAOs, a non-entity in the countrys policing structure. Respondents from IPOA faulted
the Draft Guidelines on Community Policing1 for failing to acknowledge the essence of policing and for
purporting to define certain entities as government policing agencies and thus assign policing functions
to entities whose mandate is not on policing such as the judiciary, Kenya Fisheries, the NGAOs among
others. The order of the entities puts the NGAOs at the top of the list, with the National Police Service
coming in 4th. This further demonstrates the convoluted approach to community policing which is
further exacerbated by the inaccurate definition of policing in general and community policing. The
Community Policing Act was enacted in 2015 but has never been operationalized2.
The varying definitions and views on community policing could potentially open up room for
misinterpretation that the community needs to ensure their own security. This misconception could see
a rise of vigilantes and illegal gangs and groups in the community which can carry out security patrols
and arrest and punish offenders3. This could potentially lead to incidences of human rights abuses and
a general lack of accountability and oversight over these groups.
1. 2
015 Draft Guidelines for Implementation of Community Policing- Nyumba Kumi, Usalama Wa Msingi available at http://www.
communitypolicing.go.ke/docs/draft4.pdf accessed 29 June 2017
2. A
member of the Police Reforms Working Group informed the research team that the former Cabinet Secretary for Interior,
Joseph Ole Lenku had gazetted the commencement date for the Act. However, the Gazette Notice was recalled by the immediate
former Cabinet Secretary for Interior, the late Joseph Nkaissery
3. C
HRIPS, (2017) Strengthening Community Policing in Kenya available at http://www.chrips.or.ke/wp-content/uploads/2017/05/
Strengthening-Community-Policing-in-Kenya-Brief.pdf accessed 20 May 2017

II. PROGRESS AND CHALLENGES IN ADVANCING
JUDICIAL REFORMS AND ACCOUNTABILITY
FOR HUMAN RIGHTS VIOLATIONS
A. Judicial Reforms meant to Strengthen the Legal Framework
Since the enactment of a new Constitution in 2010, the Kenyan Judiciary has been working to rehabilitate
itself and reclaim its legitimacy in the eyes of the public as the third branch of government. As against
the legacy of eroded public confidence and legitimacy the Judiciary has worked to create new legal
norms, battle corruption, and deal with increased violations by the security forces. In recent years the
relationship between the Judiciary and the other arms of government has come under increased strain
with Parliament and the Executive displaying outright hostility towards the judiciary1. The integrity of
the judicial system has also been characterized by continued struggle for resources and streamlining
the legal process in Kenya. In 2011, Kenya had only 53 judges and 330 magistrates for a population of
41.4 million. There was a massive backlog of almost 1 million cases2. In 2010, 43 percent of Kenyans
who sought services from the judiciary reported paying bribes, with the average size of the bribe being
KES 11,046 according to Transparency International. In 2014, the average size of a bribe in the Judiciary
dropped to KES 7,885.
In response to these issues, the Judiciary has pushed for the enactment of better laws to support
its work and promised to reform of its own system. The biggest reform process being the Judiciary
Transformation Framework (JTF), adopted in May 2012. It identified four pillars of reform: people-
centered delivery of justice; improving organizational culture and professionalism; ensuring adequate
infrastructure and resources; and making better use of information technology. This dedication to
reforms has led to greater transparency and a streamlining of legal education and court cases but
has fallen short in other areas3 4 5. Public polls show there has been a steady decline in support of the
Judiciary. Perception polling conducted by IPSOS from November 2013 to April 2015 found that the
number of Kenyans expressing a lot of confidence in the Supreme Court fell from 28 to 21 percent, and
21 percent to 12 percent for other courts6. The 2016 survey by Ipsos Synovate indicates that 23 percent
of the population had lost faith in the whole judicial system.7
1. W
ambugu and Chinga, High Court Rules Judiciary Is Not under Parliaments Control. International Law Office. International
Law Office, 01 July 2014, available at http://www.internationallawoffice.com/Newsletters/Litigation/Kenya/Njoroge-Regeru-
Company/High-Court-rules-judiciary-is-not-under-Parliaments-control accessed 15 May 2017
2. M
aya, How Kenya Cleaned Up Its Courts. Foreign Policy. Open Government Partnership, 09 July 2016, available at http://
foreignpolicy.com/2016/07/09/how-kenya-cleaned-up-its-courts accessed 02 May 2017
3. M
wenda, Judicial Corruption Would Throw Kenya into a Major Crisis. The Star, Kenya, 06 February 2016, http://www.the-star.
co.ke/news/2016/02/06/judicial-corruption-would-throw-kenya-into-a-major-crisis_c1288137 accessed 29 May 2017
4. M
aya, How Kenya Cleaned Up Its Courts, (2016).
5. N
girachu, and Wanzala. JSC Sends Shollei Packing over Sh2 Billion Scandal. Daily Nation, 18 October 2013 available at http://
mobile.nation.co.ke/news/JSC-sends-Gladys-Shollei-packing/1950946-2038778-format-xhtml-bsvl6r/index.html accessed 29
May 2017
6. Ibid
7. B
lasto, A quarter of Kenyans have no faith in the Judiciary Business Daily, 12 July 2016 available at http://www.businessdailyafrica.
com/news/A-quarter-of-Kenyans-have-no-faith-in-the-Judiciary/539546-3292144-jh59w0/index.html accessed 8 June 2017

As the 2017 elections draw close, it is important to understand what strides the Judiciary has taken to
establish itself and specifically how the Judiciary is better prepared to take on the elections as compared
to 2007 and 2013. The evolving constitutional relationships between the Judiciary, the Executive and
Parliament are also examined with a close focus on the changes intended or unintended that have
come about in the recent years as a result of the various reforms.
This report also examines the Judiciarys successes and failures as it attempts to bring about
accountability and justice in Kenya, specifically in regard to the operations of security agencies, as well
as the victims who suffered from post-election violence (PEV) in 2007/2008.
Legal Framework
The adoption of a new Constitution in 2010 and the resultant reforms initiated including a robust
legislative reform to supplement the new constitutional dispensation has been influential in defining and
influencing the changing character of the Judiciary and its relations with the executive, Parliament and
the general public.
The 2010 Constitution provides for access to justice as one of the fundamental rights in the Bill of
Rights1. The Constitution also provides the solid framework within which the new judiciary with express
independence and autonomy is established. Articles 161 and 160 set out the framework for the
establishment of the judiciary and the principles for the exercise of judicial authority. The Constitution
also greatly emphasizes the need for citizens to access justice2.
The Judicial Service Act, 20113 operationalizes Chapter 10 of the Constitution of Kenya 2010, which
deals with Judiciary. The Act provides the framework for judicial services and administration of the
Judiciary; makes further provision with respect to the membership and structure of the Judicial Service
Commission; the appointment and removal of judges and the discipline of other judicial officers and staff.
It also provides for the regulation of the Judiciary Fund and the establishment, powers and functions of
the National Council on Administration of Justice, and other related processes.
Since the adoption of the Constitution, new laws have been adopted to strengthen the operation of the
judiciary as well as open up access to justice avenues for citizens. A few of the laws that have been
adopted are the Legal Aid Act4, Access to Information Act5, Witness Protection (Amendment) Act 20166,
the Judiciary Fund Act7, Victim Protection Act of 20148, among other laws.
A.1. Achieving Judicial Reforms in a Hostile Environment
As discussed above, the Judiciary Transformation Framework has been the foremost reform process
adopted by the Judiciary in recent years.
1. A
rticle 27 of the Constitution of Kenya
2. A
rticle 48 of the 2010 Constitution of Kenya
3. The Judicial Service Act No. 1 of 2011
4. The Legal Aid Act No. 6 of 2016.
5. The Access to Information Act no. 31 of 2016
6. The Witness Protection (Amendment) Act, No. 45 of 2016
7. The Judiciary Fund Act No. 16 of 2016
8. The Victim Protection Act No. 17 of 2014.

In 2011, when Chief Justice Willie Mutunga appointed under the new Constitution, issued a report card
on his 120th day in office, he summed up the state of the judiciary at the time to have been an institution
so frail in its structures, so thin on resources, so low on its confidence, so deficient in integrity, so weak
in its public support that to have expected it to deliver justice was to be wildly optimistic1. To address this
situation, Chief Justice Mutunga introduced the Judiciary transformation agenda, which was viewed as
the much needed change process to service delivery by the judiciary.
Judicial reforms ran into challenges as soon as the Jubilee government took over in 2013.
The leadership at the Judiciary was pro-reform, the Jubilee leadership interpreted this to
mean they were their opponent2.
Despite the challenges experienced, including internal corruption the Judicial reform has created
concrete success as the Judiciary has hired more than 200 new judges and magistrates and established
20 new court stations since 2011 to help alleviate the backlog of cases. That was estimated at nearly a
million cases and as of 2014 had been cut down to 311,000 cases3. All the while the court has handled
more than 21,000 suggestions and complaints. By implementing these reforms, the court has become
more streamlined and better equipped to handle the issues in the future.
A.2. Strained Relationships
Since the Jubilee administration ascended to power the incidences of the Executive and Parliament
deliberately interfering with the Judiciarys reform process have increased. In certain instances,
Government has refused to accept the outcome of court proceedings that result in injunctions or
declarations against unconstitutional acts of the Government.
The independence of the JSC came under serious threat in August 2013, when there was a fallout
with the executive after the JSC decided to send the then Chief Registrar of the Judiciary, Gladys
Shollei on compulsory leave to facilitate investigations and inquiry over complaints and allegations
of financial impropriety in the management of the resources of the Judiciary. A day after the JSCs
decision, Parliament through the Committee on Justice and Legal Affairs, summoned the JSC to discuss
circumstances surrounding the suspension of the Chief Registrar. While the JSC declined to meet the
Parliamentary Committee, Parliament did not relent, it proceeded to entertain a petition for the removal
of six commissioners who were members of the Finance and Administration Committee of the JSC.
This was despite a court injunction stopping the deliberation of the petition pending the hearing of a
case filed by JSC. The petition was transmitted to the President after a resolution by Parliament. The
President proceeded to appoint a tribunal to investigate the conduct of the six commissioners with a
view of their removal, the court later nullified the appointment of the tribunal4. The Executive is viewed as
continually behaving in a manner that puts it in collision with the Judiciary.
In January 2014, in an effort to address the shortage of judges to deal with the huge backlog of cases,
the JSC sent a list of 25 judges it had interviewed, recommending their appointment. The President
failed to appoint the judges until June 2014, when without explanation as to the criteria used selected
only 11 judges from list for appointment. It was claimed that the President was still vetting the remaining
14 nominees.
1. P
rogress Report on the Transformation of the Judiciary the first hundred and twenty days, 19 October 2011, available at http://
kenyalaw.org/kenyalawblog/progress-report-on-the-transformation-of-the-judiciary/ accessed on 23 May 2017
2. Interview with MKO a former employee of the judiciary held on 7 June 2017
3. Ibid
4. H
igh Court Petition 518 0f 2013 Judicial Service Commission vs Speaker of the National Assembly & others available at http://
kenyalaw.org/caselaw/cases/view/96884/ accessed 7 June 2017

One of the 11 judges appointed was Margaret Muigai, the wife of Attorney General, Githu Muigai. This
was viewed as an affront to the Constitution, which had deliberately removed the excessive powers of
the President in controlling judicial appointments. The Law Society of Kenya sued the President over the
unconstitutionality of the decision to choose who to appoint, but before the court issued a decision, the
remaining judges were appointed in May 2015.
The decision by Chief Justice Willy Mutunga to retire one year early in 2016 - to allow sufficient time for
the appointment of a successor before the August 2017 Election, created an appetite for the Executive
branch to manage the succession in its favour. In December 2015, Parliament passed amendments
to the Judicial Service Act, that would have required the JSC to forward to the President three names
from which to choose a Chief Justice, as opposed to one name as stipulated by Article 166 (i) of the
Constitution. In January 2016, the Law Society filed a suit challenging this amendment resulting in the
court stopping implementation of the law through its decision rendered in May 2016.
With the evident hostility by the Executive and Legislature towards efforts to purge corruption in the
Judiciary, the implicit message to judicial officers was that if you had political support, you could
negotiate around efforts to be held accountable for corruption. This was evidenced in how the Executive
handled the allegations of corruption against Justice Tunoi of the Supreme Court in 2016, by initially
refusing to appoint a tribunal to investigate the corruption claims that had been raised in relation to the
handling of an election petition resulting from the 2013 election filed by Ferdinand Waititu the main
competitor against the current Governor of Nairobi County, Evans Kidero.
Another form of interference with the independence of the judiciary has been the outright contempt for
judicial decisions by Parliament and the Executive. On 21 March 2017, during an election campaign tour,
President Kenyatta while addressing residents of Nyamira County expressed that he had given one of
their sons a job in reference to the appointment of the new Chief Justice David Maraga1, who is from
that region. The Chief Justice and the Judicial Service Commission issued public statements dismissing
the Presidents assertions2.
A.3. Underfunding the Judiciary
The integrity of the legal system depends on it being properly funded. The 2010 Constitution sought to
address the past challenge of the judiciary lacking control over the resources needed for its operations.
The repealed Constitution did not provide for a specific fund for the Judiciary, leaving the determination of
the budgetary allocations sorely to the discretion of the legislature. Article 173 of the 2010 Constitution,
specifically provides for a Judiciary Fund. The budget setting process also requires that Parliament
receives the projected annual budgets from the Judiciary before determining budgetary allocations.
Despite the adoption of these reforms aimed at safeguarding the independence of the Judiciary by
empowering it to control its resources, in the recent years there has been considerable concern over
the judiciarys budget being sufficiently safeguarded from unreasonable pressures from the legislature.
1. F
or the speech by the President see https://www.youtube.com/watch?v=ELhQESW6W-4 accessed 8 June 2017
2. J
SC tells off Uhuru for linking Maragas CJ post to Kisiis, the Star,10 April 2017, available at http://www.the-star.co.ke/
news/2017/04/10/jsc-tells-off-uhuru-for-linking-maragas-cj-post-to-kisiis_c1541556 , also see CJ David Maraga says hes not
Jubilee reward to Kisii Community, Daily Nation, available at http://www.nation.co.ke/news/david-maraga-jubilee-kisii/1056-
3884926-10k3e0oz/index.html accessed on 8 June 2017

While the Judiciarys budget has increased over the years, the amounts provided have fallen short of
the resources needed by the Judiciary to implement the functions assigned to it by the Constitution.
The table below shows the amount required to fulfill those functions and the amount allocated by the
legislature. Although the budget grew, so did the gap between the funds requested for and the funds
allocated.
Funds Requirement as Allocation made by Percentage

proposed by the the Legislature cut
Judiciary
2011/12 KES. 4.597 billion KES. 4.371 billion 5%
2014/2015 KES 26.211 billion KES 14.163 billion 46%
Source: Kenyan Judiciary Annual Report 2013-2014, Kenyan Judiciary Annual Report 2014-2015
In the years following, the budget has increased to KES 15.7 billion in 2015-20161 and KES 15.8 billion
in 2016-20172. Yet these still fall short of the resources needed to fully fund the requirements that the
Judiciary has for the implementation of the transformation programme that will enable the provision of
an effective and efficient system of justice for all citizens.
Increasingly, Parliament has politicized the budgeting process. The establishment of the judiciary fund
that was to aid in creating autonomy in the management of the funds allocated to the Judiciary, has
been a long drawn process, with the bill to operationalize the fund being adopted in 20163, several years
after it had been envisioned by the 2010 Constitution. Parliament has also publicly threatened to address
its discontentment with the Judiciary by slashing its budgets4.
One respondent who spoke to the research team expressed concern over the impact of public attacks
against the Judiciary and judges over decisions:
It is imperative that the increased hostility against the courts for their decisions is likely
to influence how judges think when making decisions, they have to consider whether their
decisions would upset Parliament or the Executive.
1. O
kulo, Cabinet Approves Sh2.17 Trillion 2015/2016 Budget. The Star, Kenya, 17 October 2015, available at http://www.the-star.
co.ke/news/2015/04/24/cabinet-approves-sh217-trillion-20152016-budget_c1123937 accessed 08 June 2017
2. B
udget Highlights for 206-2017. Rep. 2017 ed. Nairobi: Kenya National Treasury, 2017.
3. The Judiciary Fund Act No. 16 of 2016
4. The injunctions by the courts to the Budget Committee of the National Assembly from hearing a petition seeking the removal of
Auditor General and the impeachment proceedings against Governor Wambora, had parliament and senate retaliate.

A.4. Corruption and imprudent use of resources by the Judiciary
Controlling corruption within the judiciary has also posed a great challenge for the top leadership at
the judiciary. Despite the implementation of the JTF, several high level corruption incidences have been
reported against the administration, as well as the judges. The corruption scandals have contributed to
the erosion of confidence against the judiciary.
An employee of the Judiciary informed the research team, that the funds allocated for improving the
Information Communication Technology (ICT) was the greatest target for corruption. Yet the most
critical areas that were envisaged for the success of the JTF was efficiency and integrity which were to
be addressed by introduction of an efficient ICT system, that could enable digital capture of proceedings,
thereby collapsing the turnaround time for judges.
One of the areas that remains unachieved under transformation framework is the automation
and digitalization of court processes and proceedings, the corruption involved here is
immense. The corruption networks that thrive on controlling information management of
physical files have been at the forefront of undermining the ICT reforms as its success would
run them out of business1.
The research team was also informed that the establishment of mobile courts to serve the marginalized
areas was one of the failed projects of the transformation framework. The costs involved in maintaining
the mobile courts were so high and did not necessarily translate into an increase in the cases filed.
Most of these courts had ended up dealing with petty offenders. The people in the marginalized
areas had over the years found alternative avenues of addressing violations, where elders
were accorded more respect than the formal justice system. I would recommend a value for
money audit be conducted to ascertain if it was still necessary to use the huge amounts of
resources for the mobile courts2.
By December 2015, Chief Justice Willy Mutunga had established a total of 51 mobile courts across the
Country with 33 of those being opened in that financial year3. The Judiciary has also continued to push
for the adoption of a framework for the use of alternative justice systems, that would see the number of
cases adjudicated by the courts drop.
B Victims of the 2007/2008 Post-Election Violence (PEV) still await

for justice and reparations
The ICC opened an investigation in Kenya in March 2010 after Prosecutor Luis Moreno-Ocampo obtained
permission from the judges. This followed Kenyas failure to establish a domestic tribunal to prosecute
perpetrators of the widespread and systematic violence that occurred after the results of the 2007
elections were disputed.
1. Interview with PMM an employee of the Judiciary held on 22 May 2017.

2. Interview with MKO held on 7 June 2017.
3. S
ee Opening Remarks by the Chief Justice at the Launch of the Wamunyu Mobile Court, 10 December 2015. Available at
at http://www.judiciary.go.ke/portal/assets/filemanager_uploads/CJ%20Speeches/cj%20speech%20at%20the%20launch%20
of%20wamunyu%20court%20%2010%20%20%20Dec%202015.pdf accessed 8 June 2017

In 2011, the pre-trial chamber confirmed charges against four of the six individuals whom the
prosecution considered as the most responsible for crimes adjudged as amounting to crimes against
humanity committed during the 2007/8 post-election violence (PEV). Two cases were then pursued, the
first against Uhuru Kenyatta and Francis Muthaura accused of five crimes against humanity: murder,
deportation or forcible transfer of population, rape, persecution and other inhumane acts, and the second
against William Ruto and Joshua Sang accused of three crimes against humanity: murder, deportation
or forcible transfer of population and persecution.
To date, there has been almost no criminal accountability for the atrocities committed during the post-
election violence, or meaningful reparations for the victims. At the national level most of the atrocities
have remained uninvestigated, despite the continued call for justice by a cross section of Kenyans.
Parliament failed to establish a domestic mechanism to investigate and prosecute the post-election
related cases. In 2012 new efforts led by the Judicial Service Commission for the establishment of
a special division within the High Court to aid in the prosecution of PEV cases, were unsuccessful. In
October 2012, the JSC sub-committee looking into the establishment of the special division of the High
Court produced its first report, which proposed the establishment of a division within the High Court to
handle not only PEV related cases but also transnational cases1. Further consultations were held with
stakeholders but an updated report was never issued. The office of the Director of Public Prosecutions
(DPP) publicly opposed the establishment of the division indicating that his office did not have case
files that could be prosecuted and for transnational crimes they would continue prosecuting them in the
lower courts as had been the case2. The general political overtures by the jubilee government have been
against any form of accountability for the PEV.
The prosecutions commenced by the International Criminal Court (ICC), were set to proceed for trial
in 2013 when two of the accused persons, Uhuru Kenyatta and William Ruto, galvanized support to
be elected to the Presidency and Deputy Presidency of Kenya, with their organizing platform being
messaged around the purported unfairness of the ICC prosecutions. Soon after the two took over power
they scaled up the massive attacks against the Court with the ultimate goal of ensuring the trials against
them would be closed prematurely.
It is against this background that the analysis below on efforts to secure justice for PEV victims is made.
B.1. Seeking justice through domestic courts
Since 2007/2008 thousands of complaints have been filed and yet very few have been adjudicated. It
has been 10 years since the violence and many victims are waiting for justice, while many more will
never find it.
In February 2012, the Director of Public Prosecutions (DPP) established a multi-agency taskforce to
review the over 6,000 case files that had been handled by the police on the PEV crimes. The taskforce
was mandated to conduct its work within six months. The only public information issued by the multi-
agency taskforce was a press release issued on 17th August 2012 indicating that of the 6,081 files
received from the police the multi-agency taskforce had reviewed 4000 files. In March 2015, three years
after the issuing of the interim report through the August 2012 press release, the taskforce allegedly
transmitted another report to the President.
1. J
udicial Services Commission, Report of the Committee of the Judicial Service Commission on the establishment of an
International Crimes Division in the High Court of Kenya (JSC Report), 30 October 2012
2. K
iplagat, Most PEV cases cannot be prosecuted Tobiko The Star 06 February 2014, available at http://www.the-star.co.ke/
news/2014/02/06/most-pev-cases-cannot-be-prosecuted-tobiko_c892628 accessed 9 June 2017

To date the multi-agency taskforce report to the President has not been published. An analysis of the
figures provided by the taskforce in 17th August 2012 and the March 2015 report to the President reveal
great inconsistencies in the data provided1.
The creation of the taskforce is viewed by many as a smokescreen for continued inaction by the
government in holding perpetrators of the post-election violence to account, largely meant to create an
impression that complementarity efforts were underway and to justify the governments willingness to
address PEV cases away from the ICC.
Constitutional Petitions Filed by Victims of the Post-Election Violence
Three constitutional petitions have been filed in the High Court challenging the governments failure to
prevent, investigate, prosecute and provide reparations to victims of sexual violence, police shootings
and forced displacement.
a) Petition by Victims of Sexual Violence
The Constitutional petition relating to SGBV2 was filed in February 2013 by eight (8) survivors 6 female
and 2 male who were brutally gang-raped and forcibly circumcised by state security officers and
civilians during the PEV. They are seeking truth, justice and reparations from the state. The survivors are
supported by a consortium of four NGOs namely, the Coalition on Violence against Women, the Kenyan
Section of the International Commission of Jurists, Independent Medico-Legal Unit, and Physicians for
Human Rights
The survivors seek to hold various state offices particularly the Office of the Attorney General, Office of
the Director of Public Prosecutions, Inspector General of the National Police Service, Cabinet Secretary
for Health accountable for allegedly failing to put in place effective measures to prevent the violence,
protect the survivors from sexual violence, investigate and prosecute perpetrators, and provide effective
remedies to victims. These failures, in the petitioners view, amount to violations of fundamental rights
and freedoms protected in the Constitution.
The consortium has also strategically organized and presented expert testimonies from eight experts,
including a government psychiatrist who had conducted assessments on all the victim petitioners.
The prosecution of the case has experienced serious delays, with the initial failure by the State to
respond to the petition for one year having the greatest impact on the time it has taken to conclude the
case. Transfers and promotions in the Judiciary contributed to great confusion on the continuation of
the hearings after the presiding judge was appointed to the Supreme Court in 2016. For several months
the case file was moved across several courtrooms in the High Court, leading to several adjournments.
The petitioners tired of the delays were forced to write to the Chief Justice on requesting that he assigns
the case file to a specific judge to alleviate the misery for victims resulting from the uncertainties. Chief
Justice Maraga responded assigning the case to one of the newly appointed judges in the Constitutional
division of the High Court, and the case has progressed with both parties finalizing the presentation of
their cases. The proceedings are now at the submission stage.
1. H
RW, I Just Sit and Wait to Die Reparations for Survivors of Kenyas 2007-2008 Pose Election Sexual Violence (2016) available
at https://www.hrw.org/report/2016/02/15/i-just-sit-and-wait-die/reparations-survivors-kenyas-2007-2008-post-election
2. N
airobi High Court Constitutional Petition No. 122 of 2013

b) Constitutional Petition by Victims of Forced Displacement
The IDP Constitutional Petition1 is a representative case filed on behalf of Kenyans who were displaced
during the PEV in Kenya. It was filed by the following civil society organizations: FIDA Kenya, Kenya
Human Rights Commission and The Kenyan Section of the International Commission of Jurists. Twenty-
seven IDPs representatives are petitioners in the case on behalf of the other IDPs in Kenya.
The petitioners claim is founded on the premise that, the government was responsible for the deaths,
internal displacements and other harms that resulted from the PEV. The victims therefore seek for
the truth about their experiences to be unearthed as well as holisticreparations be provided including
medical and psychological treatment, legal and social services and compensation.
This case has experienced similar delays to those cited above in relation to the SGBV case.
c) Constitutional Petition by Victims of Police Shootings
The Police shooting case instituted in 2016, is still undergoing the preliminary trial stages. The victims
in this case are seeking to compel the Government of Kenya to address the police shootings that were
part of the PEV. The petitioners claim that the government failed to prevent the violence, on the one
hand, and to investigate and prosecute the police perpetrators, on the other. Ultimately, the petitioners
want the government to publicly acknowledge and apologize to the victims for their failure to protect the
rights of Kenyans; to provide appropriate compensation to the victims; to investigate the shootings and
prosecute those who are responsible; and to ensure that investigations and prosecutions are credible
and independent2.
The resolution of these representative suits remains a critical channel for victims hopes to achieve
justice for violations suffered during PEV.
B.2. Failures of the Proceedings Before the ICC
In 2010 the ICC opened investigations into the crimes committed during the PEV. Investigations led to
charges being preferred against six individuals, with the charges being confirmed against four of the
accused persons, Uhuru Kenyatta and Francis Muthaura charged in one case and William Ruto and
Joshua Sang in the other. Before the commencement of the trials two of the accused persons Uhuru
Kenyatta and William Ruto were elected as President and Deputy President of Kenya in 2013.
On 5 December 2014, the ICC Prosecutor withdrew all charges against Uhuru Kenyatta, while the
charges against Kenyattas co-accused Francis Muthaura had been withdrawn on 11 March 2013. On
5 April 2016, the ICCs Trial Chamber V (A) decided by majority to terminate the case against William
Ruto and Joshua Sang, the last of the six individuals against whom charges had been initiated in 2010,
for their alleged role in the commission of crimes against humanity in Kenya. This effectively brought a
premature closure to the last two Kenyan cases as neither was decided on its merits.
1. N
airobi High Court Constitutional Petition No. 273 of 2011
2. F
act Sheet: Police Shootings in Kenya, Open Society Justice Initiative accessed at https://www.opensocietyfoundations.org/
fact-sheets/fact-sheet-police-shootings-kenya accessed 9 June 2017

During the life of the ICC cases, sharp focus fell on both the Court and the conduct of the Accused. The ICC
Prosecution struggled to secure and retain crucial evidence, while the accused persons who exercised
ultimate power in Kenya were accused of scuttling government cooperation and undermining witness
support for the successful prosecution of the cases, determined to obtain the premature termination of
the cases1. The judges in the cases observed that there was massive witness interference.
There was a disturbing level of interference with witnesses as well as inappropriate attempts
at the political level to meddle with the trial and to affect its outcome
observed Judge Robert Fremr2.
In the last report on Kenya by the Observatory for the protection of human rights defenders (May 2017),
it is also reported that during the period of the ICC investigations and prosecutions, a large number of
civil society leaders and human rights defenders engaged in an open cooperation with the Ofce of the
Prosecutor. As a result, the Kenyatta administration conducted a smear campaign blaming NGOs and
human rights defenders for instigating crimes-against-humanity charges against him and others, and
many hate blogs mushroomed, which had the goal to publicly identify the various ICC witnesses to
expose them, putting their lives in great danger.
Many human rights defenders and other witnesses, whose names were mentioned in the media, were
similarly intimidated, threatened, attacked and in some cases killed or forced to ee into exile. Even
after charges against Kenyatta were withdrawn and vacated concerning Ruto, threats and intimidations
continued to be directed at CSOs cooperating with the ICC3 .
The government also failed to cooperate in providing the Prosecution with information requested
for4. Judge Osuji in his decision stated that the proceedings are declared a mistrial due to a troubling
incidence of witness interference and intolerable political meddling that was reasonably likely to
intimidate witnesses5.
While the cases against the accused were terminated without prejudice, leaving the Prosecutor with
the option of re-opening the cases in the future if new or more evidence was secured to support the
prosecution, it is unlikely that the Court will re-open the investigations in the near future.The court has
significantly closed its operations in Kenya and it is unlikely that the necessary cooperation by the
government for collection of new evidence will be forthcoming.
Outside of the courtroom, the cases were also weakened by vicious political attacks on the Court in
Parliament and public rallies in Kenya and by a massive diplomatic offensive by the Government of
Kenya and the African Union targeting the UN Security Council and the Assembly of State Parties. At
its 15th session the Assembly of State Parties (ASP) for the first time expressed its concern[s] by the
recent reports of threats and intimidation directed at some civil society organizations cooperating with
the Court6.
The Kenya cases serve as the first cases at the ICC to be terminated without the benefit of a full trial.
1. ICC Drops Uhuru Kenyatta Charges for Kenya Ethnic Violence. BBC News. BBC, 05 December 2014.
2. D
ecision on Defence Applications for Judgements of Acquittal, Trial Chamber V(a), No. ICC-01/09-01/11, 5 April 2016, para. 147
3. K
enya, 2017 elections : broken promises put human rights defenders at risk, Observatory for the Protection of Human Rights
Defenders, May 2017, available at https://www.fidh.org/en/issues/human-rights-defenders/kenya-2017-elections-broken-
promises-put-human-rights-defenders-at accessed 9 June 2017
4. K
enyas William Rutos Case Dismissed by ICC. BBC News. BBC, 05 Apr. 2016. Web. 08 June 2017.
5. D
ecision on Defence Applications for Judgements of Acquittal, Trial Chamber V(a), No. ICC-01/09-01/11, 5 April 2016, para. 464
6. R
esolution ICC-ASP/15/Res.5 Strengthening the International Criminal Court and the Assembly of States Parties, Adopted at
the 11th plenary meeting, on 24 November 2016, p.2.

This situation left the victims demand for truth and justice unanswered, especially given that there had
been dismal domestic efforts to investigate and prosecute mid-level and lower-lever perpetrators of the
crimes committed during the PEV.
Politicization of the Reparations process
Kenyan citizens have put pressure on the government to provide reparations. The main visible groups
that continue to push for remedies for the violations experienced during the PEV have been victims
of displacement and sexual or gender-based violence. Progress towards reparations has been slow in
developing for both of these groups.
Reparations for Sexual and Gender Based Violence (SGBV)
Due to litigation and mounting pressure brought by NGOs against the Kenyan government on failure
to act on the crimes committed during the PEV, President Kenyatta was compelled to respond. When
delivering his State of the Nation address in March 2015, the President formally acknowledged and
apologized for the long-standing injustices suffered by Kenyans. In order to remedy these injustices, the
President announced the establishment of a 10-billion-shilling restorative justice fund for the victims
of past violations, over the next three years1. This was the first time in 8 years since the violence that
victims of the PEV had received a tangible commitment from the State on reparations for the violations
committed against them. The operationalization of the fund has however been an unduly protracted
process since the Presidents pledge two years ago. The government has failed to take substantive
action to implement the fund. In 2016 President Kenyattas State of the Nation address did not mention
the fund or material efforts to create it2. The Truth, Justice, and Reconciliation Commission (TJRC)
in its report of 2013, had already called for such a fund to be established. The TJRC also included in
its report a robust reparations framework that would guide implementation of reparations for victims
of violations. The Jubilee administration and Parliament has failed to adopt the TJRC report3 despite
numerous petitions by victims urging that the report be adopted so as to allow for the implementation
of the recommendations, which include a detailed framework on how reparations will be administered.
One of the major obstacles to operationalizing the fund was the lack of clarity as to which office was
responsible for the establishment of the fund since no clear legal or policy framework existed at the
time of the declaration. Civil society together with the Kenya National Commission for Human Rights
have for the past two years pushed for the adoption of a clear legal and policy framework to guide the
operationalization of the restorative justice fund. While progress has been slow, in 2016 the Attorney
General renewed efforts for the establishment of the fund and adopted a governance structure for the
disbursement of funds.
Draft regulations to govern the implementation of the fund were also developed in partnership with
civil society, under the leadership of the Kenya National Commission on Human Rights. At the time of
writing this report the regulations were with the Attorney General and are expected to be tabled before
the Cabinet and subsequently Parliament for adoption. It is anticipated that this process will culminate
in the provision of reparations for some of the victims of past violations.
1. ICTJ, In Kenya, Organizing Women Victims to Help Inform Future Reparations Policies International Center for Transitional
Justice, 15 June 2015, available at https://www.ictj.org/news/kenya-women-inform-reparations-policies accessed 08 June
2017
2. W
heeler, Dispatches: The Kenyan Presidents Failed Promises to Rape Victims Human Rights Watch, 01 April 2016
3. The TJRC report was handed to President Uhuru Kenyatta in May 2013 and formally published in the governments Kenya Gazette
on 7 June 2013. It was tabled in parliament in July 2013. Under Kenyas Truth, Justice and Reconciliation Act, implementation
of the recommendations contained in the report was to commence immediately after consideration of the report by parliament.
Parliament has failed to discuss and adopt the report.

Although there have been promises made to the survivors of SGBV in 2007/2008, the government has
failed to deliver on these promises to the survivors. 10 years later and the victims are left without any way
to pay for the ongoing expenses due to medicine or doctors treatments. The ability to work and find food
for those who contracted diseases such as HIV is reduced. The provision of ARVs by the government
while welcome has also not been effectively utilized by some of the disenfranchised survivors as they
avoid taking ARVs if they do not have food.
The ARVs weaken us if we have not eaten. When I do not have food I avoid taking ARVs, until I am able to
afford food1.
This predicament that HIV positive victims find themselves in, re-emphasizes the need for the government
to look into a more sustainable and comprehensive approach to reparations for survivors.
Victims and survivors of SGBV have used national, regional and international platforms to urge the
government to provide sustainable and comprehensive reparations to them.
When I attended the 15th Annual Assembly of State Parties (ASP), in November 2016,
I highlighted the plight of sexual violence victims of the PEV, who seem forgotten. The
Kenya government representatives present at the meeting led by Mr. Korir Singoei, the legal
advisor in the office of the Deputy President, promised that they would urgently deal with the
concerns I was raising when they returned to Kenya. They gave me their telephone numbers
and promised to meet me. Since December 2016, I have tried without success to meet with
these government officials, my calls and text messages are never responded to. I feel that the
officials just wanted to show delegates that they were committed to addressing the plight of
SGBV victims, when in reality they are not.
I feel frustrated as I traveled around the country meeting sexual violence survivors who drafted
letters addressed to President Uhuru Kenyatta, seeking acknowledgement, recognition and
reparation. I delivered seven of these letters to the President through the office of the State
House Chief of Staff Mr. Joseph Kinyua. Every month when I call to follow up on the requests
in the letters, I am told they cannot be traced. This government is blind to the needs of sexual
violence victims it has never been acknowledged or offered any assistance2.
Reparations for Internally Displaced Persons
Following the violence after the 2007 elections, 663,921 Kenyans were displaced from their homes3.
In response, the Kenyan Government has been working to provide aid to the citizens who suffered
displacement.The Government stands accused of neglecting victims who suffered other types of
violations other than displacement.
In 2012, Parliament passed the Prevention, Protection, and Assistance to IDPs and Affected Communities
Act which has been guiding the government during the process of providing reparations to IDPs. There
remains a lot of confusion though, on how IDPs are being compensated and how many have been
compensated so far.
1. Interview with a sexual violence survivor living with HIV held on 28 May 2017.
2. Interview with Jackline Mutere, a survivor of sexual violence from the PEV, and founder of Grace Agenda, an organization that
supports sexual violence victims of the PEV, particularly those who bore children after being raped, held on 5 June 2017
3. G
overnment of Kenya, Ministry of State for Special Programmes. (2012), Progress on Resettlement of Internally Displaced
Persons as at 6th January, 2012.

On 26 April 2016, the Devolution Cabinet Secretary Mwangi Kiunjuri stated that the government has
spent 17 billion shillings on IDPs.These funds were used to provide aid to approximately 193,000 IDPs1.
Deputy President Ruto has announced that the government has spent KES 17.5 billion on 28,924
IDP households since 20082. The government has been working closely with National Coordination
Consultative Committee on IDPs (NCCC), in order to verify that the individuals receiving the funds are in
fact IDPs. In December of 2016 the chairman of NCCC announced that the government had compensated
all 19,000 individuals who had lived in the 80 different camps and now the government was shifting its
focus on the 90,000 integrated IDPs that is the people who following the PEV fled to urban and peri-
urban areas, where they found shelter with host communities or rented accommodation for which
it had 6 billion shillings set aside3. The initial projections on how many of the displaced persons were
integrated IDPs, stood at 300,000 of the over 650,000 that were displaced. Considering the government
has over the years only focused on compensating IDPs who that had taken refuge in tents, it remains
unclear why the government has set aside funds for only 90,000 of the 300,000 integrated IDPs.
As the government moves towards disbursing the final 6 billion shillings to the integrated IDPs, there is a
large amount of turmoil regarding who qualified as an integrated IDP. On 19 April 2017, the Kenyan High
Court allowed the application of the Internally Displaced Persons Support Initiative (IDPSI) and issued
a temporary injunction preventing the government through the Ministry of Devolution from releasing
the funds. In an affidavit on behalf of the IDPSI, Stephen Mbogwa stated that the government had not
brought to light the mechanism put in place to ensure the proper beneficiaries would be compensated4.
IDPSI sought from the government the full list of beneficiaries, in order to be assured that those on the
list were IDPs and they actually received the funds as promised by the government.
Though the injunction was meant to force the government into being transparent it has not had that
effect. The injunction was raised against the Principal Secretary Ministry of Devolution and Planning,
Principal Secretary Ministry of Interior and Co-ordination of National Government and the Attorney
General, but it has not stopped the President from dispersing these funds to different communities
while on the campaign trail. On 6 June 2017 President Kenyatta presented the 7,000 IDPs in Kisii county
with a cheque for KES 358 million5. The following day he presented the 9,000 IDPs in Nyamira County
with a cheque for KES 470 million6. It is unclear where these funds are being drawn from, if not from
the 6 billion shillings set aside for the integrated IDPs. Not only would these actions seem to violate
the injunction of the high court, but it would also seem to be the President is using the government
assistance programme as an inducement for votes in the upcoming 2017 elections7.
1. K
ajilwa, Government Has Spent Sh17b on IDPs, Says CS Mwangi Kiunjuri.The Standard, 24 April 2016, available at https://
www.standardmedia.co.ke/article/2000199481/government-has-spent-sh17b-on-idps-says-cs-mwangi-kiunjuri accessed 08
June 2017
2. D
pps, Government to Resettle All Remaining IDPs by Monday. The Standard. The Standard, 04 February 2016, available at
https://www.standardmedia.co.ke/article/2000190529/government-to-resettle-all-remaining-idps-by-monday accessed 08
June 2017
3. O
penda and Adisa, Govt to Use Sh6bn to Resettle Integrated IDPs. Daily Nation, 20 December 2016. available at http://www.
nation.co.ke/counties/nakuru/resettle-integrated-IDPs/1183314-3492226-34drxf/index.html accessed 08 June 2017
4. C
hepkwony, Court Stops Disbursement of Sh6 Billion to IDPs. The Standard, 19 April 2017, available at https://www.
standardmedia.co.ke/article/2001236966/court-stops-disbursement-of-sh6-billion-to-idps See also Openda, Court Stops
Compensation of Sh 6bn to IDPs. Nairobi News., 18 April 2017, available at http://nairobinews.nation.co.ke/news/court-stops-
compensation-idps/ accessed 08 June 2017
5. N
yarangi and Abuga, President Uhuru Woos Gusii Voters with Sh358 Million IDPs Compensation. The Standard, 07 June 2017,
available at https://www.standardmedia.co.ke/article/2001242491/president-uhuru-woos-gusii-voters-with-sh358-million-idps-
compensation accessed 08 June 2017
6. Okuoro, and Asamba, Uhuru Issues Sh470 Million to 9,000 IDPs in Nyamira. The Standard, 07 June 2017, available at media.
co.ke/article/2001242597/uhuru-issues-sh470-million-to-9-000-idps-in-nyamira accessed 08 June 2017
7. B
oth Nyamira and Kisii Counties are located within Nyanza province which is largely viewed as a strong support base for the
political opposition. In the 2013 elections however, President Kenyatta received 29% and 27.6% of the valid votes cast in Nyamira
and Kisii counties respectively. The President seems to recognize that he can grow his support base by endearing himself the
the citizens of that region. See the National Summary and voting information by county accessed at http://psephos.adam-carr.
net/countries/k/kenya/kenya2013.txt accessed 8 June 2017

While IDPs have had greater success at receiving reparations from the Kenyan Government, it seems
that the disbursement of funds has lacked proper oversight and is plagued by political interference.
Reparations and Assistance by the ICC Trust Fund for Victims
The Trust Fund for Victims (TFV) is mandated to provide assistance and reparations to victims of serious
violations in ICC situation countries. Regarding its assistance mandate only, the intervention of the Trust
Fund is not tied to the successful completion of the cases instituted by the Court. Since the opening
of the Cases in Kenya the TFV has continually promised to conduct an assessment in Kenya, before
initiating the much needed assistance to the victims. Unfortunately, the promises did not materialize
during the life of the ICC cases, and despite follow-up by civil society in June 2016, no action has been
forthcoming from the TFV.
In July 2016, following the termination of the proceedings against William Ruto and Joshua Sang, the ICC
trial chamber declined to consider a request by victims who had been admitted to participate in the case
to determine if the Kenya government should provide the victims with reparations or in the alternative
order the Trust Fund for Victims to provide them with assistance and reparations. The reasoning of
the majority of the chamber was that because the case had been closed without a conviction then
the chamber could not rule on reparations. The dissenting judge opined that the chamber should have
considered whether reparations principles could have applied in this case considering the circumstances
of the close of the case and the fair administration of justice1.
1. M
aliti, Judges Decline to Consider Reparation Request of Victims in Ruto and Sang Case 15 July 2016, available at https://
www.ijmonitor.org/2016/07/judges-decline-to-consider-reparation-request-of-victims-in-ruto-and-sang-case/ accessed 02
June 2017

CONCLUSION
As the Kenyatta presidency comes to an end and Kenya enters into another electoral campaign season
it is clear that the Jubilee Administration has presided over significant progress and setbacks in the
Security and Justice Sectors. Much more should have been accomplished if the Jubilee administration
was to live up to its promises to guarantee safety to the people of Kenya, ensure good governance and
respect for the law and provide leadership that is accountable to the people1.There is concern regarding
the state of security sector reforms.
Their use of digital surveillance has been broad, insufficiently regulated and used to violate peoples
rights. There is an increasing concern regarding the use of extra judicial killings and there is uncertainty
whether the NPS will cooperate with IPOA in the long run. Within the security sector there are also
concerns regarding the KDF, their continued abuses of human rights, and their potential role during
any unrest in the upcoming elections. Finally, the Jubilee Coalition has left much to be desired during
their treatment of victims of violations. Regardless of the election outcome in August 2017, the next
administration needs to secure greater protections for human rights for the people of Kenya.
This report comes at a time when the country is preparing to go to a general election that presents
two possibilities for the future leadership of the country. The first possibility is that the Jubilee
administration will be re-elected to serve a second five-year term. With this outcome, if the leadership
of Jubilee approaches their second mandate as one of building a legacy, then it is likely that it could
depart from its approach in the first term where it has avoided to take significant action to stem
impunity and instead enhance spaces for collaboration with different actors to increase accountability
of the governance institutions and to safeguard the integrity of its leadership. Conversely, the Jubilee
administration if elected for a second term, could return more emboldened to claw back and disregard
fundamental constitutional principles and fundamental rights. This could lead to a minimalist approach
to constitutional and legislative reforms and a spike in the state of human rights violations and disregard
for the rule of law observed in its first term and documented in this report.
The second possibility is that of a win by the NASA coalition. This would herald a new administration and
based on their recently launched manifesto, certain issues of interest that touch on justice and security
sector reforms, such as redressing past historical injustices, are articulated as part of their priority areas.
The NASA manifesto also speaks to increasing accountability and adopting good governance practices
to curb the current indifference towards due process and the rule of law. This possibility presents a
strong platform from which a NASA government can be engaged in its initial months of leadership for
the implementation of some of the recommendations this report articulates.
In all these scenarios, there is opportunity to illuminate key priorities in the security and justice
sectors that can facilitate constructive engagement with the incoming administration as well as lay
the foundation for holding it accountable over the next five years. It is therefore on the basis of these
scenarios and possible outcomes in the August 2017 elections that FIDH and KHRC make the following
recommendations.
1. J
ubilee 2013 Manifesto

RECOMMENDATIONS
From the developments highlighted that have been particularly influential in defining and influencing the
changing character of the security and justice sector, both because of changes in governance as well as wider
societal change, FIDH and KHRC make the following recommendations to the stakeholders identified below
on how some of the challenges and lapses affecting the integrity of security sector governance and the fair
administration of justice can be addressed.
RECOMMENDATIONS ON THE SECURITY SECTOR
FIDH and KHRC urge the Government to:
. Undertake an audit on the state of security sector reforms with a pledge of political
support to prioritize and fast-track the pending security sector reforms;
. Ensure that there is accountability of the security agents involved in violation of
human rights and failure to respect the rule of law. Where possible, individual
responsibility, whether civil or criminal, must be pursued;
. Constitute a Judicial Commission of Inquiry on Extrajudicial Killings and Executions in Kenya;
. Address the drivers of insecurity in the Country. The KNCHR Audit notes the key
drivers of insecurity in Kenya as being- the massive youth unemployment, poor
working conditions and terms of service for the police officers, corruption;
. Undertake to protect the Kenyan people from violence by taking appropriate
preventative action and responsive action in case violence occurs pre, during and post
the August 2017 elections;
. Explicitly and unequivocally repudiate shoot-to-kill orders and undue use of force in
policing of protests with a guarantee of prosecuting officers found culpable;
. Actively uphold the rights of its citizens and respect the fundamental freedoms
enshrined in the Constitution.
FIDH and KHRC urge Security Enforcement Agencies to:
. Embrace a human rights culture and be encouraged to respect, protect and promote
human rights for all by adopting human rights based practices in their various operations;
. Design human rights based crowd management strategies during protests and
demonstrations and in particular align the provisions on public order management
in the NPS standing orders with the African Commission on Human and Peoples
Rightss Guidelines for the Policing of Assemblies by Law Enforcement Officials
in Africa. The security agents should be mandatorily trained on international
standards of public order management. The NPS should publicize its guidelines on
public order management and policing assemblies, in consultation with stakeholders,
should develop and adopt guidelines for policing and management of protests and public gatherings;
. Avoid use of force at all costs and should not be the standard modus operandi
for crowd control and management. Further any use of force, if necessary and
indispensable, should be informed by proper intelligence and security analysis and mapping
and should be graduated based on the different contexts. Force should only
be used to subdue and not to inflict injury, harm or loss of life. Further the use and
deployment of all weapons, lethal and non-lethal, should be accounted for after every
security operation to enhance individual and corporate accountability;
. Ensure the necessary approvals for Security operations by the National Police
Service as well as joint operation with the Kenya Defence Forces in the context of
elections are approved by the National Assembly.

FIDH and KHRC urge the National Police Service and the National
Police Service Commission to:
. Ensure that the welfare of the security officers and more so that of the police officers
are addressed in a holistic manner. Reports have documented the negative effects of
a demoralized and neglected force on the respect of the rule of law. Furthermore, the
rights of police officers particularly as relates to dignity, fair labour practices including
fair wages and remuneration and adequate housing need to be ensured. The government
should ensure improved conditions of service for the police officers including better
housing, better remuneration and better terms of service;
. Operationalize the Community Policing Act and clear command structures- have one
chain of command to enhance accountability which is difficult where you have multiple
chains of command;
. Include in the vetting of police officers and security agents an aspect of respect for
human rights and conduct the process in a more transparent and objective manner that
encourages public participation;
. Ensure that the vetting process is clear, the evidentiary threshold and procedures to be
followed are explained to the officers and a waiver signed before the vetting process in
order to avoid the abuse of judicial process to avoid or defeat the outcome of the vetting.
Additionally, other state and non-state actors especially within the Police Reforms
Working Group should engage the members of the public through public forums to
collect information that could assist the NPSC in the vetting process and also offer
technical support to the Commission;
. Adopt clear policies on consultation and decision making procedures and processes,
particularly for NPSC;
. Ensure the policing of protests is guided by the need to provide security to the protesters
exercising their constitutional rights, as opposed to using force to quell protests;
. Take stern action against security officers who use excessive force against peaceful
protesters.
FIDH and KHRC urge the IEBC and NPS to:
. Hold security briefings with all the political aspirants and sensitize them on what
security measures are available to them and how to access them;
. Use the security briefings to gather intelligence and understand the security
challenges that the candidates are facing in their respective localities.

RECOMMENDATIONS ON THE JUSTICE SECTOR
FIDH and KHRC urge the Government to:
Provide leadership in ensuring that the principles of the rule of law and independence
. of the judiciary are respected in managing the tensions between the three arms of
government;
Ensure the Judiciary is provided with adequate resources for the efficient and effective
. support of its functions;
Genuinely support the adoption of the TJRC report, so as to allow for a
. comprehensive and deliberate implementation of its recommendations and in the
interim to avoid discriminatory and piecemeal implementation of the recommendations
which disenfranchises some of the victims;
Accord all categories of victims equal recognition and provide measures of redressing
. even those whose violations are not easily visible, such as Sexual Violence victims. This
should lead to a comprehensive and transparent process for identification and profiling
of victims for future reparation programmes;
Continuously review 2007/8 post-election violence case files in their possession and to
. initiate genuine efforts to bring accountability for mid-level and lower level perpetrators
as well as offering effective remedies and compensation to the victims;
Institute a comprehensive an audit of the IDP resettlement programmme thus far and
. its findings made publicly available.
FIDH and KHRC urge the Parliament to:
. Exercise its responsibility in the budgeting process transparently and with integrity, by
ensuring that the budget cuts for allocations made to the Judiciary are not motivated by
personal vendetta against decisions of the judiciary;
. Exercise its responsibility to hold the judiciary to account on behalf of the citizens
that it represents with caution. The motive of such exercise of power should be limited to
discussions that do not touch on individual decisions by judges;
. Prioritize and not undermine the process of adopting laws that are crucial in the
implementation of the 2010 Constitution;
. Adopt the TJRC report and an implementation framework without further delay.
FIDH and KHRC urge the Judiciary to:
. Ensure it continues to account to its main stakeholder the public on actions taken that
facilitate access to justice;
. Reassess the efficacy of the reforms undertaken under the implementation of the JTF,
drawing from lessons learnt from the failures and fault lines;
FIDH and KHRC urge the ICC Trust Fund for Victims to:
. Conduct its long overdue assessment of victims needs in Kenya so that it can decide on
whether to initiate assistance to the victims of the PEV.
FIDH and KHRC urge the ICC Assembly of State Parties to:
. Based on its 2016 omnibus resolution expressing concerns by reports of threats and
intimidation directed at some civil society organizations, to remain seized of this situation
and develop an internal mechanism to respond to these threats and intimidation, in particular
when commited during its sessions.

GENERAL AND CROSSCUTTING RECOMMENDATIONS
. Inter-agency collaboration across the board needs to be enhanced and encouraged

within the security and justice sectors. Institutions must not work at cross-purposes
but aim to complement each other in order to effectively deliver reforms in the
Country.
. There should be an independent forensic audit of the police vetting process to be
conducted independently(by legal and financial firms) to establish the number
of vetted cases, the reasons for reinstatement, the process, the reasons for removal.
FIDH and KHRC urge Constitutional Commissions and Independent Offices to:
. Sustain and continue vigilance and advocacy for the implementation of the various
laws and regulations that have an effect on improved service delivery, professionalism
and improved accountability;
. Enhance inter-agency collaboration and harness synergies towards improved
delivery on the specific mandates.
FIDH and KHRC urge NGOs to:
. Due care and consideration should be given to proper

planning, conduct and management of public protests and gatherings.
Organizers of public protests and gatherings must properly brief the participants of
the due process, expectations and code of conduct, which must include personal
security and responsibility;
. Invest in partnering with the relevant bodies to offer capacity building to security
agencies with a focus on aspects of accountability, oversight, professionalism, service
delivery and human rights and respect for the rule of law. In the same breath, CSOs
should offer constructive criticism on these aspects;
. Consolidate efforts where there are similar mandates and avoid over-stretching and
causing fatigue to the victims. NGOs should also adopt a multi-disciplinary approach
to the pursuit for justice as demonstrated in the SGBV case;
. Offer technical support and capacity enhancement to grassroots human rights
defenders and organizations such as Mathare Social Justice Center on
documentation of human rights violations and pursuit of justice and accountability
for these violations.
FIDH and KHRC urge the Development Partners/ Donors to:
. Implore the Government to uphold constitutionalism and respect for human rights
with respect to its various national and international obligations on matters of security
and justice;
. Consider pegging funding to government agencies on the basis of demonstrating
the respect, promotion and fulfilment of human right;
. Support preventive/ response measures and support NGOs working on sexual and
gender based violence. Further, development partners should allow for flexibility
in their funding and allow a budget for security within the human
rights sector to allow for rapid response;
. Support organizations working towards justice and accountability, and good
governance. Donors should not be dissuaded by political rhetoric from those
occupying the highest levels of public office and would therefore prefer limited
scrutiny and transparency.

Kenyan policemen beat a protester during clashes in Nairobi, Kenya; May 16, 2016
The Kenya Human Rights Commission (KHRC) was founded in 1992 and registered in Kenya in
1994 as a national level Non-Governmental Organisation (NGO). Throughout its existence, the core
agenda of the Commission has been campaigning for the entrenchment of a human rights and
democratic culture in Kenya through monitoring, documenting and publicising rights violations.
The KHRC also works at community level with 27 human rights networks (HURINETS) across
Kenya. We link community, national and international human rights concerns. KHRCs strategic plan
aims to Secure civic-driven, accountable and human rights centred governance. Its founders and
staff are among the foremost leaders and activists in struggles for human rights and democratic
reforms in Kenya.
KENYA HUMAN RIGHTS COMMISSION

Gitanga Road opp. Valley Arcade Shopping Center,
P.O Box 41079-00100, Nairobi, Kenya
Tel: +254-20 2044545 / Tel: +254-20 2106709
Tel: +254-20 3874998
Fax: +254-20 3874997
Email: admin@khrc.or.ke
Website: http://www.khrc.or.ke
This publication has been produced with the assistance of the European Union. The contents of this
publication are the sole responsibility of FIDH and can in no way be taken to reflect the views of the
European Union.

Keep your eyes open
Establishing the facts - Investigative and trial observation missions

Supporting civil society - Training and exchanges
Director of Mobilising the international community - Advocacy before intergovernmental bodies
publication:
Informing et reporting - Mobilising public opinion
Dimitris
Christopoulos
Editor:
Antoine Bernard
Coordination: For FIDH, transforming societies relies on the work of local actors
Andrew Songa,
Tchrina Jrolon
Authors: The Worldwide movement for human rights acts at national, regional and international levels
Esther Waweru, in support of its member and partner organisations to address human rights abuses and
Stella Ndirangu consolidate democratic processes. Its work is directed at States and those in power, such as
Design : armed opposition groups and multinational corporations.
FIDH
Its primary beneficiaries are national human rights organisations who are members of the
Movement, and through them, the victims of human rights violations. FIDH also cooperates
with other local partner organisations and actors of change.
CONTACT US
FIDH
International Federation for Human Rights
17, passage de la Main dOr
75011 Paris
Tel: (33-1) 43 55 25 18
www.fidh.org
Twitter: @fidh_en / fidh_fr / fidh_es
Facebook: https://www.facebook.com/
FIDH.HumanRights/
Dpt lgal Juillet 2017 - FIDH FIDH / KHRC

(d. anglaise) - Kenyas
ISSN scorecard
2225-1804 on security
- Fichier informatique and justice
conforme : broken
la loi du promises
6 janvier 1978 and unfinished
(Dclaration N330 675) business 63

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federating 184 organisations
from 112 countries
ABOUT FIDH
FIDH takes action for the protection of victims of human rights violations,
for the prevention of violations and to bring perpetrators to justice.
A broad mandate
FIDH works for the respect of all the rights set out in the Universal Declaration of
Human Rights: civil and political rights, as well as economic, social and cultural
rights.
A universal movement
FIDH was established in 1922, and today unites 184 member organisations in
112countries around the world. FIDH coordinates and supports their activities and
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www.fidh.org

Kenya's Scorecard On Security and Justice: Broken Promises and Unfinished Business

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Kenya's Scorecard On Security and Justice: Broken Promises and Unfinished Business

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Kenyas scorecard on

security and justice :

KENYA_REPORT_0717.indd 1 29/07/2017 11:19

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I. SECURITY SECTOR REFORM : INSTITUTIONAL PARALYSIS

II. PROGRESS AND CHALLENGES IN ADVANCING JUDICIAL REFORMS

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ACHPR African Charter on Human and Peoples Rights

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I. SECURITY SECTOR REFORM: INSTITUTIONAL PARALYSIS

A. Legal and Institutional Framework

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1. Article 240(3) of the Constitution of Kenya, 2010

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The Independent Policing Oversight Authority (IPOA) established

1. Section 41 (13) of the National Police Service Act

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NATIONAL SECURITY CONCIL

NATIONAL POLICE NATIONAL INTELLIGENCE KENYA DEFENCE

B. Persisting Deficiencies within the Security Sector

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Operation Usalama Watch

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Inadequate Preparedness and Coordination to Respond to the Terrorist Threats,

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B.1.2. Normalization and Digitization of Extrajudicial Killings and Executions

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Morning, I remember warning this guy

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Musa is now past tense, please when

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1. Interview with Mungai, a youth from Mathare, 30 May 2017

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B.1.3. Policing Public Protests

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B.1.5. . Increase in Illegal Firearms

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B. 2. Persisting weaknesses in the accountability process for Security Agencies

B.2.1. General Accountability for human rights violations by Security Agents

1. Interview with JM an MCA Aspirant, Nairobi, 8 June 2017

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B.2.2. Accountability of the Police

The Independent Policing Oversight Authority (IPOA)

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NPSC Oversight Mandate

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1. Interview with an officer at the NPSC, Nairobi, May 2017

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1. Interview with Mungai, a youth from Mathare, 30 May 2017

1. Interview with JM an MCA Aspirant, Nairobi, 8 June 2017

1. Interview with an officer at the NPSC, Nairobi, May 2017

1. IPOA Board Member, Nairobi, May 2017

1. Interview with PMM an employee of the Judiciary held on 22 May 2017.